28 La. Ann. 40 | La. | 1876
Indictment was found against the prisoner, charging him with having, on the thirty-first of July, 1874, feloniously attempted, by threats and intimidation, to prevent one Solomon Blum from testifying in a criminal prosecution, in the case of the State vs. William Nichols. Upon this indictment a nolle pros, was entered, and on the eighth of November, 1875, he was proceeded against by information. He was convicted and sentenced to two years imprisonment at hard labor in the Penitentiary.
We do not think the statute protects him. The indictment was found within the time limited by law. The information followed the indictment, and cannot be considered as the first charge made against him. The law was complied with when the indictment was found, and, as we read the law, all that is necessary in such cases is that the indictment -shall be found within one year after the offense shall have been made known to a public officer- having the power to direct the investigation •or prosecution. If the prosecuting officer finds that the indictment is defective, he can, in our opinion, enter a nolle pros, and proceed regularly; although more than a year has elapsed from the finding of the indictment, to the filing of the information. In the eases reported in 7 An. 256; 17 An. 69; 19 An. 76, 90, relied upon by the appellant, no pro•ceedings had been commenced until more than a year had elapsed from the time the crime charged against the prisoners had been committed.
It is urged that the motion in arrest of judgment should have been sustained, because it appears on the face of the information that the-offense charged is barred by the statute. If the information stood alone, the position would, probably, be correct. But we take the record as we find it, and in it we find the admission that an indictment had been found before the information was filed. The indictment, we think, took the case out of the statute of limitations. The same remarks apply to the case in 23 An. page 433.
On the trial, and when the counsel for the prisoner was addressing the jury, and while he was reading section 986 of the Revised Statutes, he was stopped by the judge and was informed that he would not be permitted to make an argument to the jury on the subject of the prescription of the crime, as it was not their province to decide whether the case was prescribed or not. At least this is what is stated in the bill of exceptions which we find in the record. The judge, it is true, says that he does not think the bill as presented states the question fairly. If so, he should not have signed it. He should have seen that the bill stated the facts as they occurred; but we are satisfied, from his •own statement, that the fact is substantially as stated.
In this particular he erred. ' Whether or no the crime charged was
It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the case be remanded to be proceeded in according to law and according to' the views herein expressed.
