No. 12,547 | La. | Jun 14, 1897
Lead Opinion
On Motion to Dismiss Apteal.
The opinion of the court was delivered by
The motion assigns, that the record discloses neither motion to quash, motion for new trial, nor motion in arrest of judgment; and, further, that it contains no bill of exceptions to any ruling of the trial judge, and that, as a necessary consequence, the defendant was without right to appeal.
But it appears from the record that on the day previous to the one on which the motion to dismiss was filed, defendant’s counsel filed a special assignment of errors apparent on the face of the record to the effect (1) that the crime charged in the indictment was barred by the limitation of the statute at the lime same was presented; and (2) that it affirmatively appears by the record that the
In the presence of this assignment the motion can not prevail, as the defendant is entitled to be beard on those questions of law, notwithstanding they are for the first time raised by an assignment of error in this court. State vs. Balize, 38 An. 542; State vs. Hanks, 38 An. 468; State vs. Behan, 20 An. 389; State vs. Morel. 20 An. 402; State vs. Krepple, 20 An. 402.
The motion is denied.
Opinion on the Merits
ON the Merits.
■ The accused is appellant from a conviction of the crime of petit larceny and a sentence to seven months’ imprisonment in the penitentiary, relying on his assignment of errors of law which are alleged to be apparent upon the face of the record.
The first assignment of error is, that the crime charged against the accused was barred by the statute of limitation — Revised Statutes, Sec. 986 — at the time the information was found against him, and presented to the court a qua, the statute declaring that “ no person shall be prosecuted, tried or punished for any offence * * * * unless the indictment or presentment for the same be found or exhibited within one year next after the offence shall have been made known to a public officer having the power to direct the investigation or prosecution.”
The information was filed on the 12th of April, 1897, and it charges that the accused did on the 12th day of April, 1896, three pairs of shoes of the value of three dollars, and other articles of property belonging to one H. B. Turcan, wilfully and feloniously take, steal and carry away; and upon that recital the point is made by defendant’s counsel, that the information was not filed or presented to the court within one year next after the offence is alleged to have been committed.
From the recitals from the record just referred to that statement is manifestly correct — the full term of one calendar year having expired on the day previous to the filing of the information by the district attorney.
The language of the law is imperative, that “ no person shall be prosecuted, tried or punished for any offence ” — other than such as are particularly excepted — ‘ unless the indictment or presentment for
As there seems to have been no examination in the matter by the grand jury, presumably it was brought to the attention of the law officer of the State contemporaneously with the filing of the information; and as it does not negative prescription the plea must be sustained and the judgment reversed.
It is therefore ordered and decreed that the judgment and sentence be annulled and the defendant discharged.
Rehearing
On Application por Rehearing.
Before this cause was submitted to the court for its decision the State failed to make any objection to the sufficiency of the transcript as sent up from the court below. No motion was filed suggesting a diminution or incompleteness of the record and invoking the writ of certiorari for correction of the same.
The only motion filed by the State was one to dismiss the appeal on the ground that the record presented no motion to quash, or for new trial, or in arrest of judgment, and no bills of exception to rulings of the court a qua.
The State thus acquiesced in the transcript sent up as showing the whole case as presented and tried below. Trial was had here on this-transcript and on the additional papers and briefs filed in the ease in this court. The motion to dismiss the appeal was found to be without merit, and on- the face of the record and the papers before us it was clear that the prescription of one year, brought to our attention in defendant’s assignment of error, must prevail. Accordingly, a decree was entered reversing the verdict and sentence and discharging the accused.
The State, in an application for. rehearing, suggests for the first time the incompleteness of the record upon which the case was tried here, advances this as grounds for rehearing, and asks that a writ of certiorari issue commanding the court below to send up a full and complete record of all proceedings had in the case there.
The allegation is' made that the true reeqrd would show the
As a matter of sound practice, to which the State must be held as rigidly as parties accused are, we are constrained to hold that after a decision by this court on a case as presented, the prosecution can not be heard to set up as grounds for rehearing the incompleteness of the record.
Rehearing refused.