45 So. 2d 897 | La. | 1949
Lead Opinion
[1] Writs were granted herein under our supervisory jurisdiction to finally review the judgment of the Criminal District Court for the Parish of Orleans denying relator's demand for dismissal of an indictment for forgery on the plea of three years' prescription, filed under the provisions of Article
[2] Our examination of the record establishes the following facts:
[3] The Grand Jury of the Parish of Orleans returned the indictment (Case No. 121-318) against Oliver F. Bradford on May 21, 1946. The case was originally allotted to Section"A" of the Criminal District Court for the Parish of Orleans, and an arraignment was set for May 29, 1946, but was continued to June 5, 1946 by the defendant. On that day the defendant filed a motion to quash, which was fixed for trial on June 14, 1946. On June 14, 1946, the motion to quash was overruled, as were also a demurrer and a motion to elect, which had been presented on that day. On the same date the defendant also submitted an application for a bill of particulars, which was taken under advisement by the court until June 21, 1946. On June 21, 1946 the court deferred judgment on the application for a bill of particulars until June 26, 1946, and on the latter date it further deferred judgment on that application until August 2, 1946. However, no judgment was ever rendered in Section "A". Under the provisions of Section 3 of Act
[4] The issue presented to us for determination in the instant case is the correctness of the trial judge's ruling that defendant's motion for a bill of particulars, filed on June 14, 1946, interrupted the running of three years' prescription on the indictment. Article
[5] "In felony cases when three 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, and if the district attorney fail or neglect to do so, the court may on motion of the defendant or his attorney cause such nolle prosequi to be entered the same as if entered by the district attorney.
[6] "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. (As amended, Acts 1935 (2nd E.S.), No. 21, § 1; 1942 No. 147, § 1.)"
[7] The State vigorously urges objection to the sustaining of the plea of prescription by contending that the accused has escaped trial through dilatory pleas and continuances obtained by him or in his behalf; and secondly, that the plea of prescription should not be sustained because the defendant has waived his right to a speedy public trial by not demanding same.
[8] Both of these pleas must be considered in the light of the Bill of Rights of the Constitution of the State and the interpretation to be placed thereon. In considering the provisions of the article of our Constitution which provides for a speedy trial, we must also look into the intent of the original Bill of Rights — the guarantee of protection to individual citizens from arbitrary methods of prosecution and trial. The right of a speedy trial is a direction to the government and its agents to carry into effect such a provision in the interest of the accused, as well as a privilege granted to the accused. Thus, we have a two-fold objective — the State mustproceed and the accused can demand. The accused's failure to assert his right does not relieve the State from its obligation of proceeding. The former's right is so correlated with the latter's obligation that a consideration of either involves a discussion of both.
[9] An accused must be informed of the nature and character of the charge made against him, and the charge must be clearly set forth, before he can answer thereto by pleading his innocence or guilt. Under our Criminal Code, we have adopted a short form of indictment. The plea for a bill of particulars must necessarily be construed and considered in connection with the demand to be informed as to the nature and character of the charge. It relates to a matter of substance and a constitutional right. However, there is no need for a discussion on this point because the record clearly reveals that from June 14, 1946, the date of the alleged interruption by the filing of the motion for a bill of particulars, until June 21, 1949, the date the case was finally called, a period of more than three years had elapsed during which neither prosecution nor defense did anything in this matter. Certainly, the defendant had no control over the prosecution's inaction. There was nothing he could do; he had filed a motion for a bill of particulars to be informed of the nature and character of the offense, and he did not even have to plead to his guilt or innocence until that was furnished.
[10] We do not find from the facts of this case that the defendant comes within the exception of Article
[11] A motion for a bill of particulars in a criminal case could not be termed as dilatory by its nature, because it is a necessary adjunct to the use of the short form of indictment to prevent the violation of the constitutional rights of an accused. The failure to act for whatever reason by a court or by a district attorney or by both should not be resolved as a matter of omission and fault of a defendant.
[12] For the reasons assigned, the ruling of the trial judge is reversed and set aside, and the defendant's plea of prescription of three years is sustained, and it is ordered that a peremptory writ of prohibition issue herein, directed to Hon. Niels F. Hertz, Judge of Section "F" of the Criminal District Court for the Parish of Orleans, prohibiting further proceedings in the prosecution complained of, and that the charge against Oliver F. Bradford be nolle prosequied.
[13] HAWTHORNE, J., dissents and assigns written reasons.
[14] McCALEB, J., concurs in the decree.
[15] HAMITER, J., dissents for the written reason assigned by HAWTHORNE, J.
Dissenting Opinion
[17] In my opinion the ruling of the trial judge overruling the plea of prescription is correct. As long as the district judge had under advisement the defendant's application for a bill of particulars, the State could not proceed to trial. The law could not contemplate imposing a duty on the State to try a defendant when in law it was impossible for the State to proceed because of a procedural move of that defendant. It is true that the Constitution guarantees to the accused in criminal cases a speedy trial, and it is equally true that the law of this state places upon the district attorney the duty of trying an accused within three years, but it was never intended that the delay of the judiciary in passing on a plea of the accused could be considered as delay by the district attorney to deprive the accused of a speedy trial. The application of the defendant for a bill of particulars was a dilatory plea which operated to delay his trial and places this case in the exceptions to Article
[18] The effect of the reasoning in the majority opinion is far-reaching, and in my opinion places a duty and responsibility on the district attorney which the law never intended. Numerous examples could be set out wherein an accused might not be brought to trial within three years, and the State would not be responsible for the delay, but one example will suffice to illustrate the point. Let us assume that an accused is successful in having an indictment quashed within the three-year period; that the State appeals, as it has a right to do, just as the accused had the right to apply for a bill of particulars in the instant case; that, because of the delay for the appeal to be heard and the delay during which this court keeps the case under advisement, the decision reversing the district court is not rendered until after the three-year period. By the decision in the instant case the district attorney could be compelled, and it would be his duty, to nol-pros the indictment. If the delay caused by the district judge's having a pre-trial matter under advisement can be counted in computing the three-year period, the delay caused by the Supreme Court's having the matter under advisement can also be counted.
[19] The view taken by this court in State v. Theard,
[20] The judiciary should protect and defend at all times the right of an accused to a speedy trial, but at the same time the interest of the State and the public generally in apprehending and punishing criminals should not be disregarded.
[21] I respectfully dissent.
Dissenting Opinion
[36] Under the law, since the adoption of the short form of indictment, the filing of a bill of particulars in a criminal case is a matter of right. State v. Bessar,
Addendum
[22] On Rehearing [24] This case is before the court on a rehearing granted the appellee, State of Louisiana.
[25] As is noted in the majority opinion on the original hearing, this is a felony case in which there was a plea of prescription filed, based on the fact, as appeared from the record, that three years had elapsed from the date of finding an indictment without the accused being tried.
[26] Article 8 of the Code of Criminal Law and Procedure makes it incumbent on the District Attorney, in such cases, to enter a nolle prosequi, and if he should fail or neglect to do so, the court may on motion of the defendant or his attorney cause such nolle prosequi to be entered. The article prescribes further that none of its provisions "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 * * *."
[27] The State had contended that the accused had escaped trial through a dilatory plea when he filed an application for a bill of particulars which was received by the Court, ordered filed and taken under advisement, where it remained in abeyance and was not acted on until more than three years had elapsed from the date of the indictment. The question at issue was whether or not the application for a bill of particulars constituted such a dilatory plea as is contemplated in the article of the Code of Criminal Law and Procedure from which we have just quoted. The trial judge evidently held that it was, since he over-ruled the plea of prescription. On reviewing his ruling on writs which had been granted, this court, in a majority opinion, held that he was in error and consequently reversed his ruling and rendered a decree sustaining the plea of prescription. It ordered that a peremptory writ of prohibition issue to Honorable Niels F. Hertz, Judge of Section "F" of the Criminal District Court for the Parish of Orleans prohibiting further proceedings in the prosecution complained of.
[28] After a careful review of the majority opinion on the original hearing we have reached a different conclusion and now hold that the application or motion for a bill of particulars was such a dilatory plea as was intended under Article 8 of the Code of Criminal Law and Procedure and through which the defendant had escaped trial up to the time it was acted on in the district court.
[29] The Code of Criminal Procedure does not define a dilatory plea and there is no reason we can think of why the definition of such plea as given in the Code of Practice of Louisiana should not apply. According to the definition as found in Article 332, they are exceptions "such as do not tend to defeat the action, but only to retard its progress; * * *." Certainly that is the light in which a plea for a bill of particulars must be regarded in a criminal case. It is comparable to an exception of vagueness in civil matters and merely calls for more information by the accused before he thinks he should be made to plead to the indictment so that he can better prepare his defense. It by no means defeats the charge that is made in the indictment and only tends to delay the progress of the prosecution. To this extent, it will be necessary to reverse the judgment rendered in the original hearing.
[30] However, under the situation that is presented in this case, we find it impossible to render a final decision at this time.
[31] It strikes us as being a most unusual circumstance for a trial court to hold a plea such as an application for a bill of particulars under advisement for as long a period as was done in this instance. No reason for the delay appears from the record but we think that one must have existed. Whilst the matter was pending, a new division of the Criminal District Court for the Parish of Orleans was created by Act
[32] The State is interested in seeing that an accused be made to stand trial for an offense with which he is charged, and the accused, on the other hand, is entitled to preserve every legitimate right of defense he may have. We are unable to pronounce judgment in the state in which the record stands. As we believe that the interest of justice will best be served by remanding the case to the district court, for the purpose of finding out, if possible, what was the cause of the delay in the ruling on the plea for a bill of particulars, and of ascertaining whose fault it was, if there was any fault, that it was not acted on before, we have concluded to do so.
[33] For the reasons stated, it is ordered that the former judgment herein be reversed, set aside and annulled, and it is now further ordered that this case be remanded to Section "F" of the Criminal District Court for the Parish of Orleans, to be proceeded with in accordance with the views herein expressed.
[34] MOISE, J., dissents, believing that original decree should be reinstated, and will assign reasons.
