State v. Shushan

• Decision Date: 26 June 1944
• Docket Number: 37484.
• Citation: 19 So.2d 185,206 La. 415
• Court: Louisiana Supreme Court
• Parties: STATE v. SHUSHAN et al.

19 So.2d 185

206 La. 415

STATE v. SHUSHAN et al.

No. 37484.

Supreme Court of Louisiana

June 26, 1944

Eugene Stanley, Atty. Gen., J. Bernard Cocke, Dist Atty., of New Orleans, Fred S. LeBlanc, Atty. Gen., and Michael E. Culligan, Sr., Sp. Asst. Atty. Gen., for appellant.

Hugh M. Wilkinson and John D. Lambert, both of New Orleans, for appellees.

ROGERS Justice.

In a bill of information filed on January 19, 1940, Abraham L. Shushan and three other persons were charged with bribery allegedly committed on October 2, 1937. On March 13, 1940, the defendants were arraigned and pleaded not guilty. The offense charged is a felony, punishable by imprisonment in the State penitentiary for a term of not less than one year and not more than five years.

On April 27 1943, Abraham L. Shushan, Norvin T. Harris, Jr., and Robert J. Newman, three of the persons charged in the bill of information, filed a motion to have a nolle prosequi entered as provided by Act 323 of 1942, amending and re-enacting Article 8 of the Code of Criminal Procedure. Defendants alleged in their motion that more than three years had elapsed from the date of the filing of the bill of information; that they had not, at any time, been fugitives from justice, but, on the contrary, had always been available to the process of the court, and that, notwithstanding it was his mandatory duty under the statute to enter a nolle prosequi, the district attorney has failed and neglected to do so.

The judge of the district court entered an order on the rule directing the State, through its prosecuting officers, to show cause at a time fixed why the nolle prosequi should not be entered and the case dismissed.

The State did not file a formal return to the rule. On May 14, 1943, on an agreed stipulation of facts and after argument by the attorney general representing the State and by counsel representing the defendants, the judge sustained the motion and ordered that a nolle prosequi be entered and that the defendants be discharged. The attorney general objected to this ruling and, on his objection being overruled, reserved a bill of exception. On May 21, 1943, the attorney general presented to the judge for his signature the formal bill of exception and also a motion for an appeal to this Court. The judge signed the bill, but, on objection by the attorneys for the defendants, withheld his signature from the order of appeal pending a hearing thereon. The attorneys for the defendants then filed an opposition to the State's motion for an appeal and, on May 31, 1943, the judge, after hearing argument, dismissed the motion for an appeal and, at the same time, withdrew his signature from the bill of exception which the State had reserved in conformity with the ruling of this Court in the case of State v. LeBleu, 203 La. 337, 14 So.2d 17. The State, through the attorney general and district attorney, applied to this Court for the necessary writs to compel the judge to grant the appeal or, in the alternative, to exercise its supervisory jurisdiction and to review and reverse the ruling of the judge. This Court, acting on the State's application, granted a writ of certiorari and rule nisi and later, after hearing, sustained the right of the State to an appeal from the ruling of the trial judge ordering the entry of a nolle prosequi and the discharge of defendants. The Court, in its decree, directed the judge to sign the order of appeal and to reinstate his signature on the bill of exception reserved by the State. State v. Shushan, 204 La. 672, 16 So.2d 227. The judge having complied with the decree, the case was brought to this Court and heard on the appeal by the State.

The facts are undisputed. They are, as shown by the written agreement filed in the record, as follows: On August 21, 1939, the three defendants and two other persons were indicted by the Federal Grand Jury at New Orleans for alleged mail fraud, and, on the following day, an affidavit charging four of the parties, including the three defendants, with bribery growing out of the same transaction was filed in the Criminal District Court for the Parish of Orleans. On October 17, 1939, a new federal indictment, which, in effect, was a substitute for the indictment of August 21, 1939, was returned against the defendants. In December, 1939, defendants were tried and convicted of mail fraud in the Federal District Court on the indictment of October 17, 1939, and on January 2, 1940, they were sentenced to imprisonment in the Federal Penitentiary. Defendants promptly took appeals from their conviction and sentence and were released on bond pending the appeals, and for two years thereafter defendants were continuously present and at large in the City of New Orleans and within the jurisdiction of the Criminal District Court.

For approximately five months after August 22, 1939, the day on which the affidavit was filed in the Criminal District Court, or until January 19, 1940, no steps were taken to prosecute defendants in the State court. But on January 19, 1940, after defendants had been convicted in the Federal court and while their appeals were pending therefrom, the district attorney filed the information in this proceeding charging defendants with bribery. On March 13, 1940, defendants were arraigned on the charge, pleaded not guilty, and were released on bond.

On January 18, 1941, defendants' conviction in the mail fraud case was affirmed by the United States Circuit Court of Appeals for the Fifth Circuit, 117 F.2d 110. On March 3, 1941, a rehearing was denied and a stay of mandate was ordered for thirty days to permit defendants to apply to the United States Supreme Court for a writ of certiorari. On May 12, 1941, the writ was denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531, and defendants applied for a rehearing of the ruling. Subsequently, two of the original defendants abandoned their applications for rehearing, surrendered to the United States Marshal and were imprisoned in the United States Federal Correctional Institution at Texarkana, Texas.

On October 13, 1941, defendants' application for rehearing of the ruling of the United States Supreme Court on their application for a writ of certiorari was denied, 314 U.S. 706, 62 S.Ct. 53, 86 L.Ed. 564, and on October 23, 1941, defendants surrendered to the United States Marshal. On October 28, 1941, defendants were transported and delivered to the United States Federal Correctional Institution at Texarkana, Texas, to begin serving their sentences.

At all times, from the inception of the prosecution in this case, the filing of the affidavit on August 22, 1939, and the filing of the information on January 19, 1940, up to the time of their surrender to the United States Marshal on October 23, 1941, the defendants were openly and continuously in the City of New Orleans. On September 1, 1942, the defendants were released on parole from the Federal institution at Texarkana, Texas, and since that date have openly and continuously resided in the City of New Orleans and within the jurisdiction of the Criminal District Court, and defendants have never been fugitives from justice.

The agreed stipulation of facts shows that the State never applied for a writ of habeas corpus ad prosequendum to produce the defendants for trial before the Criminal District Court on the charge of bribery during the period from October 23, 1941, to September 1, 1942, while they were incarcerated in the Federal prison at Texarkana; that defendants were never notified to appear, nor were their sureties ever notified to have them appear for any proceeding in the case at bar since they were arraigned on March 13, 1940, and that none of the defendants absented himself, sought any continuance, entered any delaying plea, or failed to be ready to respond to any call of the Criminal District Court for the Parish of Orleans, nor has he at any time, personally or by attorney, ever applied to the Court, or to any official charged with the prosecution, for a tria of the case.

The State's contentions opposing the defendants' rule to show cause why a nolle prosequi should not be entered and defendants discharged are presented by way of argument and not by formal plea. In the district court and in this Court, when the case was brought here on the State's application for remedial writs, the attorney general and the district attorney contended that the three years prescription provided by Article 8 of the Code of Criminal Procedure, as amended and re-enacted, was interrupted by defendants' absence from the State for the ten months they were incarcerated in the Federal prison or correctional institution in Texarkana. The attorney general and the district attorney invoked also Article 9 of the Code of Criminal Procedure providing that the prescription established by Article 8 of the same code shall be interrupted by the absence of the defendant from the jurisdiction of the court without the written consent of the court first obtained and entered upon the minutes filed in the record of the case. In the brief, which they filed on behalf of the State on the hearing of the rule nisi addressed by this Court to the trial judge, the attorney general and the district attorney for the first time, in connection with their alternative demand that this Court in the exercise of its supervisory jurisdiction should review and reverse the ruling of the trial judge, discussed Act 147 of 1942 and its application to the issues involved in this case.

Evidently realizing the difficulty of maintaining them, defendants are not urging on this hearing of the case their contentions that the running of the three years prescription provided by Article 8 of the Code of Criminal Procedure, as amended, was interrupted by defendants'...