State v. Theard
| Decision Date | 12 January 1948 |
| Docket Number | 38649. |
| Court | Louisiana Supreme Court |
| Parties | STATE v. THEARD. |
Rehearing Denied Feb. 16, 1948.
Appeal from Criminal District Court, Parish of Orleans; Frank T. Echezabal, Judge.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Racivitch, Dist. Atty., and Beuker F. Amann, and Edgar Corey, Asst. Dist. Attys., all of New Orleans, for appellant.
Edward Alexander Parsons and A. G. Williams, both of New Orleans for appellee.
Under a bill of information filed September 1, 1936, in cause No. 85,824 on the decket of Section 'D' of the Criminal District Court of Orleans Parish, the defendant Delvaille H. Theard was charged with embezzling $45,575 from the Phoenix Building and Homestead Association of New Orleans.
No further step was taken in the prosecution until more than ten years later when, on March 11, 1947, he was arraigned and pleaded not guilty.
Several days thereafter (March 25, 1947) the defendant through his counsel, retracted his plea of not guilty and pleaded the prescription of three years under the provisions of Articles 8 and 9 of the Louisiana Code of Criminal Procedure. The plea of prescription was sustained, the prosecution was ordered dismissed, and, for the ruling, the State of Louisiana appealed.
As originally enacted, and insofar as pertinent here, Article 8 of our Code of Criminal Procedure provided:
'In felony cases when six years elapse from the date of finding an indictment, or filing an information, and in all other cases when two years elapse from the date of finding an indictment, or filing an information or affidavit, it shall be the duty of the district attorney to enter a nolle prosequi if the accused has not been tried.
'Nothing in this Article shall apply or extend to an accused person who has absconded, or who is a fugitive from justice, or who has escaped trial through dilatory pleas, or continuances obtained by him or in his behalf.'
And Article 9 thereof recited: 'Whenever it shall have been established to the satisfaction of any court in which any criminal prosecution shall be pending that the prescriptive periods as herein provided have elapsed since the last date upon which any steps shall have been taken by the state in such prosecution, and that the district attorney has not entered his nolle prosequi, the court shall order the dismissal of said prosecution, and the same shall not thereafter be revived; provided, that the prescription established in Art. 8 hereof shall be interrupted by the absence of the defendant from the jurisdiction of said court without the written consent of the court first obtained and entered upon the minutes, or filed in the record of the cause; provided, further, that the burden of proving the accruing of the prescription herein established shall in all cases rest upon the person alleging the same.'
Article 9 has never been amended. Article 8, however, was amended and re-enacted in two separate acts of the Legislature of 1942 numbered respectively 147 and 323. Under Act No. 323 of 1942, which counsel for both the State and the accused concede is applicable to this cause, the above quoted original provisions of Article 8 were changed so as to read:
In opposing defendant's plea herein, predicated on the provisions of said Article 8, Act No. 323 of 1942, and on said Article 9, the State contends that the running of the three year prescription was interrupted by an adjudication of defendant's insanity in another criminal prosecution and that the arraignment herein was timely. In this connection it shows, and the record before us reveals, that on August 11, 1936 (several days prior to the filing of the information in the instant proceeding) the defendant was charged under another bill of information, in cause No. 85,517 on the docket of Section 'A' of the Orleans Parish Criminal District Court, with the embezzlement of $40,000 from a Mrs. Georgine Denis Merrill. In that cause on December 13, 1937, he filed an application for the appointment of a lunacy commission, and on April 20, 1938, he was held to be presently insane. The impediment continued until May 11, 1944, at which time he was adjudged (in said Section 'A') to be presently sane, capable of understanding the proceedings against him, and able to assist in his defense. Thereafter, numerous other steps were taken in the course of the prosecution in said cause No. 85,517 (Section 'A'), including a jury trial which resulted on February 25, 1947, in his acquittal of the charge.
It is the State's contention that the insanity proceedings (initiated almost fifteen and one-half months after the filing of the instant information), together with the adjudication thereon, effected an interruption (not a suspension) of the accruing prescription; and that since the three year period did not commence to run anew until the accused was judicially declared presently sane on May 11 1944, the arraignment herein on March 11,...
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State v. Smith
... ... Gulf States Utilities Co. v. Dixie Elec. Mem. Corp., 248 La. 458, 179 So.2d 637 (1965); State v. Theard ... ...
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State Through Dept. of Highways v. Beaird-Poulan, Inc.
... ... 'This Court's refusal in 1969 to grant writs upon application by the State in that earlier case, while normally persuasive, does not carry the same weight as a precedent as it would, had that case been decided by this Court after the granting of a writ. See State v. Theard, 212 La. 1022, 34 So.2d 248 (1948); State v. Ardoin, 197 La. 877, 2 So.2d 633 (1941). This Court is not bound by its refusal of writs, to adopt law expressed in appellate court opinions. Garlington v. Kingsley, handed down this day. 289 So.2d 88 (La.1973 (sic)).' ... In following ... ...
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... ... See State v. Walgamotte, 415 So.2d 205, 210 (La.1982) (quoting State v. Theard, 212 La. 1022, 34 So.2d 248 (1948)). Moreover, the statutory scheme limiting the state's time in which to commence trial after initiating prosecution "prevents delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the ... ...
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Colonial Pipeline Co. v. Agerton
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