State v. SciortinoState v. Sciortino
In еach of these cases, the state charged the defendant, Sciortino, by bill of informatiоn with the possession of marijuana cigarettes, a felony denounced by
In Case No. 46,821, the state filed a bill of information . on September 21, 1959, charging the defendаnt with the illegal pos
In Case No. 46,822, the state filed a bill of information on September 22, 1959, charging Sciortino with the illegal possession of 23 Marijuana cigarettes on December 13, 1959, a date apprоximately three months after the filing of the charge. The defendant entered a plea of not guilty. From 1960 to 1962, the defendant was granted several continuances. On May 7, 1963, the state amended the bill of information to show that the date of the offense was December 13, 1958, as refleсted in the police report. On defense motion, the court continued the rearraignmеnt, requested by the state, to permit the filing of special pleadings. The trial judge sustained the рlea of prescription and' motion to quash filed by the defendant.
In its judgment sustaining the defense pleas, the trial court stated:
“In this matter the time is the essence as the attempted chаnge was made for the purpose of knocking out the one year prescription in order to get around a successful Plea of Prescription.
“This Court feels that since the original charge was allowed to remain in effect for a period in excess of three yеars, that to allow the District Attorney to amend the original information would allow him to knock оut a plea of prescription of one year after the District Attorney has knowledge of the correct date.”
We cannot agree with the judgment of the trial court.
The amendment of the bills of information was proper. Time is not of the essence of unlawful possession of marijuana, the crime charged.
The defendant, however, strenuously contends that the date cannot be corrected after a period of one year from the time the district attorney acquires knowledge of the proper date because of the one year prescriptive period governing the prosecutions.
The prescriptive period applicable to these prоsecutions is found in
“No person shall be prosecuted, tried or punished for any offense [with certain exceptions] * * * unless the * * * information * * * for the same be * * * filed within one year after thе offense shall have been made known to the judge, district attorney or grand jury having jurisdiction * * *."3
The prescription of one year applies to the institution of the prosecution, that is, thе filing of the bill of information. It does not limit or prevent the subsequent
Each of the bills of information was filed well within the оne year prescriptive period. Each was properly amended on motion of the state made, according to the record, in open court. We conclude that the plea of prescription and motion to quash are without merit.
For the reasons аssigned, the judgment of the Criminal District Court of the Parish of Orleans is reversed; the plea of presсription and motion to quash are overruled; and the cases are remanded for further рroceedings according to law.
Notes
. State v. Johnson,
.
.Act No. 25 of 1960 repealed this section except as to prosecutions instituted prior to the effective date of the 1960 act.
. 22 C.J.S. Criminal Law § 236, p. 610. Compare Art. 1153, LSA-C.C.P.