17 So. 2d 349 | La. | 1943
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *342 In two counts of a bill of information filed on July 10, 1941, the District Attorney for the Parish of Orleans charges defendant with having embezzled during the year 1936, certain funds entrusted to his care and keeping while employed by the Department of Conservation of the State of Louisiana. Another, or the third, count of the information purposes to negative the accruing of prescription, and it recites that the District Attorney "does further give the said court here to understand and be informed that although more than one year has elapsed since the commission of the aforesaid offenses, in manner and form as aforesaid, yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the Judge, District Attorney, or Grand Jury having jurisdiction thereof". *343
Defendant attacked the information through a written motion, urging that it shows on its face that the crime alleged has prescribed. This plea of prescription was overruled; and thereafter defendant successfully invoked the supervisory jurisdiction of this court, thus bringing the case before us for review.
It is provided in Article 8 of our Code of Criminal Procedure that "no person shall be prosecuted, tried or punished for any offense, murder, aggravated rape, aggravated kidnapping, aggravated arson, burglary in the nighttime, burglary in the daytime, armed robbery, and treason excepted, unless the indictment, information, or affidavit for the same be found or filed within one year after the offense shall have been madeknown to the judge, district attorney or grand jury havingjurisdiction, * * *."
And, according to the well established jurisprudence of this state, an information or indictment, in cases where the crime charged has been committed more than a year before the bill's filing, is an absolute nullity if it does not contain an allegation negativing prescription. See State v. Oliver,
In the instant case, as the record shows, several years elapsed between the dates of relator's (defendant's) alleged commission of the embezzlement acts and the time when the formal charge was placed against him; and, therefore, it was essential that the prescription of one year be properly negatived in the information. Relator insists that this legal requirement has not been met. *344
First, relator contends that the district attorney, in count three, "has negatived knowledge on the part of the district attorney, the judge and the grand jury but has failed to negative knowledge on the part of the attorney general who is `an officer having the power to direct a public prosecution' and that, therefore, the district attorney has failed to negative the existence of facts necessary to a suspension of prescription."
Under this first contention he directs attention to Section 986 of the Revised Statutes of 1870, as last amended by Act 67 of 1926, which reads:
"No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, rape, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one (1) year next after the offense shall have been made known to a public officer having the power to direct a public prosecution. * * *"
Then he says that the attorney general is a "public officer having the power to direct a public prosecution", and that the quoted section of the Revised Statutes was not changed or repealed by Article
This court had occasion to consider both of those provisions in State v. Bussa,
"Therefore, the only change made in the Code as to prescription is in regard to what allegations the bill must contain to negative prescription.
"Before the adoption of the Code of Criminal Procedure the required allegation was that the offense charged was not known to a public officer having the power to direct a public prosecution, and since its adoption the necessary allegation is that the offense charged was not known `to the judge, district attorney or Grand Jury having jurisdiction.'"
Relator, however, points out that the Bussa case was decided in 1932, at which time Article
"Subject to the supervision of the Attorney-General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit. * * *"
Further he shows that at such time Article 156 of the Code of Criminal Procedure provided:
"Whenever any district judge or district attorney shall be informed that a crime has been committed in his district, and that no *346 complaint or declaration thereof has been made before any committing magistrate, he shall inquire into the fact by causing all persons he shall suppose to have some knowledge of the fact to be summoned before a court of competent jurisdiction, in order that their depositions may be taken."
Then the argument is advanced that in as much as those laws made it the exclusive province of the district attorney to determine whom, when and how he should prosecute, and they required such official and also the district judge to make inquiry into crimes about which formal complaint had not been made, "the negativing of prescription against the judge, the district attorney and the grand jury constituted the negativing of prescription against every public officer having the power to direct a public prosecution." But in 1934, he further argues, the Legislature, by Act 24 of the First Extra-ordinary Session of that year, amended Articles 17 and 156 of the Code of Criminal Procedure so as to permit the attorney general to relieve, supplant and supersede the district attorney in any criminal proceeding, with full power to institute and prosecute criminal proceedings, thus constituting the attorney general the chief public officer having the power to direct prosecutions; and he being such, and having the power of interrupting the running of prescription by the filing of an information, the negativing of prescription as to him, the attorney general, has since been and is now required.
If it can be said that Act No. 24 of the First Extra-ordinary Session of 1934 was intended by the Legislature to change the *347
law as relator contends, regarding which intent we express no opinion, no such change was actually effected. That statute in the recent case of Kemp, Jr., District Attorney, v. Stanley, Attorney General,
The second ground for relator's insistence that the information fails to negative the running of prescription is that count three thereof uses the clause "yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the judge, district attorney * * *," instead of alleging in the language of the statute that the information is filed "within oneyear after the offenses shall have been made known * * *." And, with reference to this complaint, relator says:
"* * * The proper language to use in the information is `that said offense had not been made known to the District Attorney within one year from the filing of this information.' The District Attorney has chosen to use language other than the language of the statute. If such language is equivalent to thewords of the statute, the information is good. If the languageused in the information is not equivalent to the language of thestatute, then the information is not good. It is beyond dispute that the negativing of prescription in *348 the information is sacramental." (Italics ours.)
There can be no question, as relator states and as we have shown above, that an information charging a crime committed more than one year before its filing must appropriately negative the one year prescriptive period. This is sacramental; a failure so to do renders the information fatally defective.
Also the law indisputably is that a criminal statute must be strictly construed and all ambiguities therein are to be interpreted favorably to the accused. That legal principle is firmly imbedded in the jurisprudence of our state; but it has no application to the question presently before us. The statutory provision now being considered — "within one year" — is unambiguous, and we are merely required to determine, as relator points out, whether the language used in the information is equivalent to it. In other words our duty here is not that of construing the mentioned phrase, "within one year", found in Article
The preposition "within", according to Webster's New International Dictionary, is defined as:
"1. In the inner or interior part of; inside of; not without; as, happiness lies within a man. * * * 2. In the limits or compass of; specif.: a Not farther in length than; as, within five miles. b Not *349 longer in time than; before the end or since the beginning of; as, within an hour. c Not exceeding in quantity or degree; as, expenses kept within one's income. 3. Hence, inside the limits, reach, or influence of; as, within call, hearing, reach, sight; not going outside of; not beyond, overstepping, or the like."
The phrase "within one year" deals with the element of time. Time is not a static thing. It is, as the poet says, fleeting; it is continuous and moves constantly from one phase to another. It waits for no man. If a person is required to perform an act within a given year, and he does it before the end of that period, even on the last fractional second thereof no matter how small, his efforts are timely. If, on the other hand, the last instant of the year is allowed to pass without performance but he acts on the very next infinitesimal fraction of a second, he performs untimely; he is then in a new period, not within but without the given one, and more than the year has elapsed. The act must be done either within the year or without the year; there is and can be no intermediate point.
The following illustration, although not dealing with the element of time, is appropriate. If a physician states to a patient that the cost of an operation will be "within $200", and, following a performing of the services, a statement is rendered for exactly $200, that charge is "within $200". Or if he says that the cost will be "not more than $200", a charge of $200 is still within the $200. At the exact point of $200 the cost is neither less than nor more than $200; yet it is within that amount. *350
Similarly, as to the time element, the last moment of the prescription of one year is within the prescriptive period. But on the passage of such moment it is incorrect to use the phrase "within such period"; neither can it be correctly said that "more than one year has not elapsed", because more than a year has elapsed.
The expression "more than one year has not elapsed since", as used in the information under consideration, means the same as "not more than one year has elapsed since", or "not longer than one year has elapsed since", or "before the end of one year". Hence, such expression, tested by the above quoted definition of the preposition "within", is equivalent to the phrase "within one year since". Any other construction would be strained and unreal.
In the brief of relator's counsel we find the following:
"The District Attorney has been pleased to say that the second year had not begun when knowledge was brought to him. He has not said that the first year had not ended. Certainly knowledge can be brought to you within the year without more than the year elapsing. The first second of the second year would have been the first period of time for the expression `more than one year' to be properly used. The last second of the first year would have been the period of time for the expression `within the year' to be used. As `within one year' has one meaning and `more than one year' another meaning, the two phrases differ and the use of the second phrase does *351 not comply with the sacramental requirements of the statute. * * *."
We agree thoroughly with the proposition that the last second of a given year falls within such year, and that on the occurrence of the succeeding second more than the year has elapsed. Further, we agree that there is a vast difference in meaning between the phrases "within one year" and "more than one year". But, in making the quoted argument, relator's counsel ignores the all important negative, the word "not", which the information filed against this defendant contains. A statement that "more than one year has elapsed" is quite unlike an allegation that "more than one year has not elapsed". The district attorney employed this last-mentioned language.
There are numerous decisions in the jurisprudence of this state dealing with Section 986 of the Revised Statutes of 1870, as amended, and Article
Only one of those cited cases, because of the inappropriate language therein used, is deserving of special comment here, it being that of State v. Hoffman,
"The information was filed more than one year after the bank had closed its doors; hence, in order to show that the defendant was liable to prosecution, it became necessary to allege that an indictment had been found and that it had not been set asideuntil within less than a year before the filing of the information; and an allegation to that effect was accordingly made in the information. * * *" (Italics ours.)
The word "less" was erroneously used therein by the court, as Section 986 of the Revised Statutes, which was being considered, employed the phrase "within one year" and not "within less than a year". Furthermore, the sufficiency of the indictment was not being tested; instead the court was only required to pass upon the admissibility of certain evidence offered by the state in proof of the indictment's allegations.
The district court's overruling of the plea of prescription is correct; and, for the reasons above assigned, the writs heretofore granted are recalled and the relief requested by relator is denied.
HIGGINS, FOURNET, and PONDER, JJ., dissent.
Dissenting Opinion
On July 10, 1941, the district attorney for the Parish of Orleans filed a bill of information against the accused alleging, in two counts, that he had committed the offense of embezzlement of the sum of $566.03 on September 16, 1936, and the sum *353 of $199.96 on December 3, 1936. As it appeared on the face of the information that the alleged crime was prescribed by prescription of one year, the third count of the information negatived prescription by stating that the district attorney "does further give the said Court here to understand and be informed that although more than one year has elapsed since the commission ofthe aforesaid offenses, in the manner and form as aforesaid, yetmore than one year has not elapsed since the commission of theaforesaid offenses was made known to the Judge, District Attorneyor Grand Jury having jurisdiction thereof, * * *." (Italics for emphasis.)
The defendant filed a plea of prescription contending that the information was fatally defective because the district attorney had not negatived prescription of one year from the date the aforesaid offenses were made known to the judge, district attorney or grand jury having jurisdiction thereof. The trial judge overruled the defendant's plea and he applied to this court, under its supervisory jurisdiction, for writs of certiorari, mandamus and prohibition. The writs were granted and on the return day the matter was submitted on the record and briefs.
The issue presented must be determined by the proper interpretation to be placed upon Count 3 of the bill of information and the pertinent parts of Article
"Art. 8. No person shall be prosecuted, tried or punished forany offense, murder, *354 aggravated rape, aggravated kidnapping, aggravated arson, burglary in the nighttime, burglary in the daytime, armed robbery, and treason excepted, unless the indictment,information, or affidavit for the same be found or filed withinone year after the offense shall have been made known to thejudge, district attorney or grand jury having jurisdiction; * * *.
"Provided, that in all criminal prosecutions an indictmentfound, or an information filed, or an affidavit filed whereprosecution may be by affidavit, before the above prescriptionhas accrued, shall have the effect of interrupting suchprescription; * * *." (Italics for emphasis.)
The law is clear and well-established that where it appears from the face of an indictment or information that the offense was committed one year before it was filed, the indictment or information is fatally defective unless there is a proper allegation contained therein negativing prescription of one year by stating that it was filed "within one year after the offense was made known to the judge, district attorney or grand jury having jurisdiction [thereof]." Art. 8, Code of Criminal Procedure as amended; State v. Guillot,
There is no doubt that Article
In 22 C.J.S., Criminal Law, § 224, page 351, we find:
"In most jurisdictions there are statutes limiting the time within which prosecutions for crime may be commenced, and the validity of such statutes has been sustained. Such statutes, broadly speaking, are to be construed liberally in favor of accused and against the prosecution. * * *"
And in the footnotes on the same page under "Reasons for Rule", it is stated:
"The statute of limitations is not a process to be applied strictly and grudgingly, but must be liberally construed, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition by the legislature of the fact that time gradually wears out proofs of innocence, and a notification that a fixed and positive period established by it destroys all proofs of guilt."
In State v. Bradley,
"* * * we have to take the law as we find it, and have due respect for all of *356 the safeguards which the law gives to the defendant in a prosecution for crime."
It is the universal and cardinal rule of construction that penal statutes must be strictly construed and it is elementary that in criminal cases the law is strictly interpreted in favor of the accused and against the State. State v. De Generes,
The relevant language of Article
In the case of State v. McNeal, 1925,
"The indictment charges the crime to have been committed by the accused on October 15, 1923. It was returned into open court by the grand jury and filed on January 23, 1925, more than a year from the time the crime is alleged to have been committed. There is no allegation or statement in the indictment to negative the fact that the crime had been prescribed when the indictment was found, such as, for instance, that the offense had not been made known to any officer of the law having power or authority to direct a prosecution until within the year prior to theindictment. * * *"
In State v. Richard, 1921,
"When, therefore, the state undertakes to prosecute under an indictment which charges an offense committed more than a year prior to its finding, it proceeds in violation of a prohibitory law, unless it makes allegation that the offense was not made known, within the year, to any public officer having the power to direct the investigation or prosecution; * * *."
In the concurring opinion of the foregoing case, 149 La. on page 579, 89 So. on page 701, we find:
"The reason why an indictment for an offense alleged to have been committed a year or longer before the indictment is found must contain the allegation that the commission of the offense was not made known to an officer authorized to prosecute a yearor longer before the indictment was found is that that allegation is necessary to show a legal right to proceed with the prosecution or trial." *358
In State v. Perkins, 1935,
"To say the least, the information that was in the possession of the district attorney was sufficient to place him on notice that defendant had committed the crime of bigamy, and to suggest that a prompt and full inquiry be had as to the facts. There is no reason to suppose, in the exercise of due diligence, he could not have discovered within the year prescribed by the codalarticle [Art. 8, Code of Criminal Procedure] that, as it subsequently developed, defendant's first wife was living undivorced from defendant at the time he contracted his second marriage." (Brackets ours.)
In State v. Bischoff, 1919-1920,
"This leaves the only remaining question to be considered, and that is whether or not the state was required to make proof of the fact as alleged in the bill of information that the commission of the offense had not been brought to the attention of an officer authorized to prosecute within the time duringwhich prescription would have otherwise run.
"* * * The law does not say merely that the offense shall be prescribed, but that `no person shall be prosecuted, tried or punished, * * *' indicating that, if it be brought to the attention of the court at any time, from the initiation of the criminal proceedings to the end of the punishment, that thecharge was not preferred within the period provided by thestatute, the proceeding should be abated; * * *." *359
In State v. Rhodes, 1920,
"* * * It is not disputed that the accusation was made known to the officers authorized to direct a prosecution when the affidavit was filed in the First city criminal court. State v. Gonsoulin, 38 La.Ann. 459. Our conclusion is that their authorityto prosecute was barred by prescription one year thereafter."
In State v. Cooley et al., 1933,
"The prescription, prescribed by article
In State v. Wren et al., 1896, 48 La.Ann. 803, 19 So. 745, the Court said:
"In the case of State v. Hanks, 38 La.Ann. [468] 469, the language employed in Sec. 986 Rev.St., was interpreted to mean that `no person shall be prosecuted for an offence unlessindicted within a year after it was denounced to the publicofficer.'"
In State v. Hoffman, 1908,
"Question having arisen as to the regularity of the impaneling of the grand jury, the district attorney nolle prosequied the *360 indictment, and renewed the same charge in an information.
* * * * *
"The information was filed more than one year after the bank had closed its doors; hence, in order to show that the defendant was liable to prosecution, it became necessary to allege that anindictment had been found and that it had not been set asideuntil within less than a year before the filing of theinformation; and an allegation to that effect was accordingly made in the information." (All italics for emphasis.)
See, also, State v. Cheatham et al., 1933,
In the light of the foregoing undisputed jurisprudence, we return now to a consideration of the wording of the pertinent parts of Article
In Webster's New International Dictionary, Second Edition, the word "within" in relation to time, is defined to mean: "(b) not longer in time than; before the end or since the beginning of; as, within an hour." "Before" is defined as meaning "Preceding in time; earlier than; previously to."
In Words and Phrases, vol. 45, Permanent Edition, at page 378, we find: "Word `within,' when used relative to time, has been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than."
The reason why the members of the Legislature were careful to use the words "within" and "before" in the Codal Article was because they realized that at the exact moment one year elapsed or expired, prescription tolled or accrued in favor of the accused protecting him against being prosecuted, tried or punished for the offense. They knew it was impossible for the State at that same moment to have the conflicting right to file a bill of information or indictment which would start the prosecution because at that very time the prescriptive period elapsed and became legally effective in favor of the accused. In fine, those two conflicting rights could not exist simultaneously or at the same time because each is completely destructive of the other. Therefore, the State has to file the bill of information or indictment against the accused *362 "within one year" after the offense has been made known to the judge, district attorney or grand jury having jurisdiction or "before the above prescription has accrued" in order to interrupt prescription of one year.
It is also significant that in both Act 147 of 1942 and Act 323 of 1942, amending Article
"`In felony cases when three years elapse from the date offinding 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 mandatory 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 entered the same as if entered by the District Attorney,' Provided that if at any time during said three or two year periods, respectively, the offender is a fugitive from justice, such prescriptive period shall be suspended and shall recommence to run only from the date said offender is captured or surrenders." (Italics mine.)
It will be noted that in the above-quoted part of the Article, the Legislature did not use the words "before" or "within" in providing the three-year prescriptive period but clearly stated that the defendant was *363
entitled to a nolle prosequi when three years had elapsed from the date of the finding of an indictment or the filing of a bill of information. Since the Legislature did use the words "before" and "within" with reference to the one-year prescriptive period also provided for in Article
Did the State by alleging in Count 3 of the information "yetmore than one year has not elapsed since the commission of the aforesaid offenses was made known to the Judge, District Attorney, or Grand Jury having jurisdiction thereof * * *" negative, as it was required to do, that one-year prescription had tolled or accrued? The answer to this question depends on what is meant by the above phrase. Can it be said "yet more than one year has not elapsed" is synonymous with and equivalent to saying that the information was filed "within one year" after the offenses were made known to the district attorney, the judge or grand jury, or before the above prescription accrued? "More than one year" certainly means a period of time in excess of, greater or longer than exactly one year. It is a period of time of one year plus an additional amount of time. It is not alleged that one year has not elapsed but that "more than one year has not elapsed". It has been demonstrated above that the offenses in question are prescribed by exactly one year. This cannot *364 be construed to mean more than one year. Consequently, it cannot be said that the State has negatived that one year has elapsed since the offense was made known to the proper officers named in the Article. For this court to hold that the allegation "yet more than one year has not elapsed" is proper and legal, would be for all practical purposes extending the prescriptive period beyond the time of one year exactly. This would be legislating and also would be contrary to the holding of the numerous authorities above cited that a liberal construction in favor of the accused and a strict interpretation against the State must be placed upon the statute.
It is difficult to see how, even with a broad construction in favor of the State, one could arrive at the conclusion that "more than one year" is equivalent to one year exactly, or "within" a year, or "before" a year. "Within" a year or "before" a year means during a year, in the time of a year, throughout the continuance or course of a year and cannot by any possible stretch of the imagination be made to mean more than a year, longer than a year, beyond a year, or without a year.
"Within one year" means within the limits of and during the year. What was not alleged in the information is that one year has not elapsed since the commission of the said offenses was made known to the judge, district attorney or grand jury. The State elected to use the words more than one year has not elapsed instead of the words of the statute or their equivalent, and this choice is fatal and is a bar *365 to any further prosecution of the defendant in this case.
The prescriptive period provided by the Legislature is an exact and definite period of time, one year, and not one moment more or longer or greater. The State had to act before or within a year in order to prevent prescription accruing in favor of the defendant. It failed to do so and this court is powerless to extend that period of time one moment beyond the expiration of one year.
This court has recognized the limitation on its authority to extend the period of prescription fixed by the Legislature, even in a civil case. In State ex rel. Dunshie v. Fields et al.,
"Since relator did not file his notification within the 20-day period provided by statute, the trial court correctly rejected his demand."
For these reasons, I respectfully dissent.
Dissenting Opinion
The defendant was charged on July 10, 1941, in the first two counts of a bill of information, with having embezzled certain funds of the Department of Conservation of the State of Louisiana during the year 1936. In the third count it is declared: "* * * although more than one year *366 has elapsed since the commission of the * * * offenses, * * * yet more than one year has not elapsed since the commission of the * * * offenses was made known to the Judge, District Attorney or Grand Jury having jurisdiction thereof * * *."
It is elementary that the only crimes known to law in this state are statutory. The legislature, by its adoption of Article 8 of the Criminal Code, as amended by Acts Nos. 147 of 1942 and 323 of 1942, has designated the time within which the prosecution of these crimes (excepting those specifically named in the article) must be begun, that is, within a year after the offense is committed or knowledge thereof is conveyed to the proper authorities. And under the jurisprudence of this state the failure to properly negative prescription under this article is fatal to the indictment or information.
I agree with the conclusion in the majority opinion that the statute under consideration here is unambiguous. It is to be noted that in the first paragraph of Section 8, as amended, it is specifically declared that "no person shall be prosecuted * * * for any offense * * * unless the indictment [or] information * * * for the same be found or filed within one year after the offense shall have been made known to the judge * * *," and in the second paragraph of this same article there is the proviso "that in all criminal prosecutions an indictment found, or an information filed * * * before the above prescription has accrued, shall have the effect of interrupting such prescription." Thus it may be seen that the lawmakers, *367 in clear and unambiguous language, have declared that the indictment must be found or information filed "within a year" and if not so found or filed before that time to interrupt the running of the prescription, no person can be charged with, tried for, or convicted of the offense.
The majority opinion is based primarily, if not entirely, upon the broad definition of the preposition "within" found in Webster's New International Dictionary. In my opinion therein lies the fallacy of the majority opinion for it is elementary that a penal statute must be strictly construed, all doubts being resolved in favor of the accused and against the state. The broad and liberal construction given Article 8 in the majority opinion is not only in direct violation of the universal and cardinal rule of construction just referred to, but it also does violence to the spirit as well as the letter of the law.
Furthermore, I believe that since we are dealing with an element of time in this case, the specific example given in the definition quoted in the majority opinion, i.e., "before the end or since the beginning of; as within an hour," or, to paraphrase the time element here, "as within a year," is very appropriate. To construe the phrase "no more than a year" as being equivalent to the phrase "before the end or since the beginning of" a year is not only giving the same a very broad construction, but, in my opinion a somewhat strained one.
I, therefore, respectfully dissent from the majority opinion. *368
