8 Rob. 566 | Louisiana Court of Errors and Appeals | 1844
In April of the present year, the grand jury of the First District, presented a bill of indictment for perjury against the defendant, who, on his arraignment, pleaded not guilty, and the trial progressed until the argument was opened on the merits to the jury by the district attorney, who was followed in the de-fence by J. G. Sever, Esq. At this stage of the proceedings the district attorney, discovering a flaw in the indictment, moved the court for permission to enter a nolle prosequi, which being granted, the jury were discharged from the further consideration of the case, and the accused was remanded to prison. A few days after, the grand jury presented another bill of indictment for the same offence against the defendant. On this new bill he was tried and convicted; and two assignments of error, filed by counsel in this court are relied on, to support the appeal; the first of which is, that the first prosecution was, in contemplation of law, a trial, and the entering of the nolle prosequi at the time it was entered, and the discharge of the jury without the consent of the defendant, were equivalent to an acquittal, which barred any subsequent trial for the same offence. This objection- we are to consider as in the nature of a special plea in bar, which regularly
This being the case, we pass to the consideration of the second assignment of errors, which is, that the indictment is bad, because the negation of the truth of the defendant’s alleged oath, is confined to what took place “ after the assault aud battery committed by Peter McLoud upon the body of the late Dougald Leitch,” and does not extend to or embrace any other period of time, before or after the said assault and battery by McLoud. The perjury charged in the indictment is upon that part of the oath of the defendant, where he swears, “ that shortly after the assault and battery committed by Peter McLoud unon the body of
Judgment affirmed.