HOLCOMBE, Justice ad hoc.
The accused, Emile Lecompte, was indicted by the Grand Jury of the Parish of Jefferson on November 17, 1942, for the crime of manslaughter. He was arraigned November 18, 1942. Thereafter, on motion of the State the trial of the case was continued several times for the reason that material witnesses were in the Armed Forces.
On May 28, 1946, the accused, through counsel, filed a motion wherein it was alleged that more than three years had elapsed since the date of the filing of the aforesaid indictment, during which time the accused had not been tried, and that under the provisions of Act 147 of 1942 it was the duty of the District Attorney to enter a nolle prosequi, but that the District Attorney had failed or neglected to do so, and that the court should order a nolle prosequi entered in the case.
The judge of the lower court thereupon •ordered that the District Attorney show cause on Friday, May 31, 1946, why the court should not order that a nolle prosequi be entered, the same as if entered by the District Attorney.
The record fails to disclo-se that any answer was filed to the rule to show cause. However, a hearing was had on the said rule and the court maintained defendant’s motion and ordered a nolle prosequi entered. From this ruling counsel for the State did not reserve a bill of exceptions. On May 31, 1946, the State was granted an order of suspensive appeal from said judgment to this Court.
There are only two questions presented for decision: Firstly, was it necessary for the State to object to the ruling of the lower court and to reserve a bill of exceptions to such ruling in order for this Court to consider the evidence taken on the trial of the rule to show cause; secondly, was the judgment of the court ordering the entry of a nolle prosequi correct?
Article 540 of the Code of Criminal Procedure provides in part that: “ * * * The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment.”
Article 541 of the Code of Criminal Procedure reads as follows: “A case is finally disposed of by any judgment which dismiss
es the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence.”
In the case of State v. Shushan, 204 La. 672, 16 So.2d 227, it was held that:
“A
judgment in prosecution for bribery ordering a nolle prosequi entered over the protest of the prosecuting attorney, and ordering defendant discharged, is a ‘final judgment’ from which the state has the right to appeal.”
Again, in the Shushan case this Court had this to say: “The right of the State to appeal from a judgment maintaining a plea of prescription against the prosecution for a felony is well recognized in the decisions of this court.”
It must therefore, be conceded that the judgment of the District Court ordering the entry of a nolle prosequi and sustaining the plea of prescription was
a final judgment and it must also be conceded that from this judgment the State had the right to appeal.
See Article 540 of the Code of Criminal Procedure; State v. Cobbs, 7 La.Ann. 107; State v. Precovara, 49 La.Ann. 593, 21 So. 724; State v. Hayes, 162 La. 917, 111 So. 327; State v. Brossette, 163 La. 1035, 113 So. 366; State v. Fradella, 164 La. 752, 114 So. 641; State v. Cooley, 176 La. 448, 146 So. 19; State v. Perkins, 181 La. 997, 160 So. 789; State v. Smith, 200 La. 10, 7 So.2d 368; State v. LeBleu, 203 La. 337, 14 So.2d 17.
We do not understand that learned counsel for the accused denies that the judgment here rendered is final or that the State had the right to appeal. His contention is that this Court can not, in the absence of a bill of exceptions reserved by the State to the ruling of the trial judge ordering the entry of a nolle presequi,
consider the evidence offered to sustain plaintiff’s motion.
In support of his position, learned counsel relies upon the decision of this Court in the case of State v. LeBleu, 203 La. 337, 14 So. 2d 17. In that case this Court did as urged by learned counsel for defendant, in effect, hold that
regardless of zvho is the appellant, the State or the accused,
evidence adduced in a criminal case can be brought before this Court and can be considered by this Court only by incorporating the same in a bill of exceptions.
In that connection the Court said: “It is well established in the jurisprudence of this state that evidence can be brought before this court in a criminal case only by incorporating it in a bill of exceptions. It cannot be considered, even though in the transcript, unless it is annexed to and made a part of the bill that has been timely reserved. * * *” Citing State v. White, 37 La.Ann. 172; State v. Richard, 42 La. Ann. 83, 6 So. 897; State v. Johnson, et al., 104 La. 417, 29 So. 24, 81 Am.St.Rep. 139; State v. Carr, 111 La. 716, 35 So. 839; State v. Simmons, 118 La. 22, 42 So. 582; State v. Aenspacker, 130 La. 717, 58 So.
520; State v. Stewart, 188 La. 546, 177 So. 662.
For the reasons hereinafter pointed out, the majority of this Court is of the opinion that the ruling of the Court in the Le Bleu case was erroneous -and that it should be overruled.
Article 498 of the Code- of Criminal Procedure reads as follows: “ The bill of exceptions is grounded on the objection made to the ruling of the court on some purely
incidental question
arising during the progress of the cause; and involves the correctness of the conclusions drawn by the court from the facts recited in the bill.”
Most assuredly, a ruling of the trial court ordering the entry of a nolle prosequi in a criminal case, which dismisses the prosecution and ends the case is not a ruling on "some purely incidental question arising during the progress of the cause”. On the other hand, if instead of sustaining the plea of prescription and dismissing the prosecution the trial court overrules the plea, such ruling is purely incidental, from which no appeal by the accused lies for the simple reason that such ruling is not a final prejudicial judgment. The remedy of the accused in such circumstances would, of course, be to reserve a bill of exceptions to the ruling of the court which could be reviewed by this Court only
on appeal and after verdict.
.This was the jurisprudence of this Court long before the enactment of the Code of Criminal Procedure.
As stated in Marr’s Criminal Jurisprudence of Louisiana, 2d Ed., Vol. 2: “An appeal in criminal cases does not lie from an order or judgment overruling' the plea, a motion or other interlocutory matter which does not finally dispose of the case, but lies only from the sentence or final judgment, at which time are brought up for review alleged errors made by the lower court -in the 'progress of the case.”
-See also State v. Jackson, 140 La. 680, 73 So. 770.
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HOLCOMBE, Justice ad hoc.
The accused, Emile Lecompte, was indicted by the Grand Jury of the Parish of Jefferson on November 17, 1942, for the crime of manslaughter. He was arraigned November 18, 1942. Thereafter, on motion of the State the trial of the case was continued several times for the reason that material witnesses were in the Armed Forces.
On May 28, 1946, the accused, through counsel, filed a motion wherein it was alleged that more than three years had elapsed since the date of the filing of the aforesaid indictment, during which time the accused had not been tried, and that under the provisions of Act 147 of 1942 it was the duty of the District Attorney to enter a nolle prosequi, but that the District Attorney had failed or neglected to do so, and that the court should order a nolle prosequi entered in the case.
The judge of the lower court thereupon •ordered that the District Attorney show cause on Friday, May 31, 1946, why the court should not order that a nolle prosequi be entered, the same as if entered by the District Attorney.
The record fails to disclo-se that any answer was filed to the rule to show cause. However, a hearing was had on the said rule and the court maintained defendant’s motion and ordered a nolle prosequi entered. From this ruling counsel for the State did not reserve a bill of exceptions. On May 31, 1946, the State was granted an order of suspensive appeal from said judgment to this Court.
There are only two questions presented for decision: Firstly, was it necessary for the State to object to the ruling of the lower court and to reserve a bill of exceptions to such ruling in order for this Court to consider the evidence taken on the trial of the rule to show cause; secondly, was the judgment of the court ordering the entry of a nolle prosequi correct?
Article 540 of the Code of Criminal Procedure provides in part that: “ * * * The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment.”
Article 541 of the Code of Criminal Procedure reads as follows: “A case is finally disposed of by any judgment which dismiss
es the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence.”
In the case of State v. Shushan, 204 La. 672, 16 So.2d 227, it was held that:
“A
judgment in prosecution for bribery ordering a nolle prosequi entered over the protest of the prosecuting attorney, and ordering defendant discharged, is a ‘final judgment’ from which the state has the right to appeal.”
Again, in the Shushan case this Court had this to say: “The right of the State to appeal from a judgment maintaining a plea of prescription against the prosecution for a felony is well recognized in the decisions of this court.”
It must therefore, be conceded that the judgment of the District Court ordering the entry of a nolle prosequi and sustaining the plea of prescription was
a final judgment and it must also be conceded that from this judgment the State had the right to appeal.
See Article 540 of the Code of Criminal Procedure; State v. Cobbs, 7 La.Ann. 107; State v. Precovara, 49 La.Ann. 593, 21 So. 724; State v. Hayes, 162 La. 917, 111 So. 327; State v. Brossette, 163 La. 1035, 113 So. 366; State v. Fradella, 164 La. 752, 114 So. 641; State v. Cooley, 176 La. 448, 146 So. 19; State v. Perkins, 181 La. 997, 160 So. 789; State v. Smith, 200 La. 10, 7 So.2d 368; State v. LeBleu, 203 La. 337, 14 So.2d 17.
We do not understand that learned counsel for the accused denies that the judgment here rendered is final or that the State had the right to appeal. His contention is that this Court can not, in the absence of a bill of exceptions reserved by the State to the ruling of the trial judge ordering the entry of a nolle presequi,
consider the evidence offered to sustain plaintiff’s motion.
In support of his position, learned counsel relies upon the decision of this Court in the case of State v. LeBleu, 203 La. 337, 14 So. 2d 17. In that case this Court did as urged by learned counsel for defendant, in effect, hold that
regardless of zvho is the appellant, the State or the accused,
evidence adduced in a criminal case can be brought before this Court and can be considered by this Court only by incorporating the same in a bill of exceptions.
In that connection the Court said: “It is well established in the jurisprudence of this state that evidence can be brought before this court in a criminal case only by incorporating it in a bill of exceptions. It cannot be considered, even though in the transcript, unless it is annexed to and made a part of the bill that has been timely reserved. * * *” Citing State v. White, 37 La.Ann. 172; State v. Richard, 42 La. Ann. 83, 6 So. 897; State v. Johnson, et al., 104 La. 417, 29 So. 24, 81 Am.St.Rep. 139; State v. Carr, 111 La. 716, 35 So. 839; State v. Simmons, 118 La. 22, 42 So. 582; State v. Aenspacker, 130 La. 717, 58 So.
520; State v. Stewart, 188 La. 546, 177 So. 662.
For the reasons hereinafter pointed out, the majority of this Court is of the opinion that the ruling of the Court in the Le Bleu case was erroneous -and that it should be overruled.
Article 498 of the Code- of Criminal Procedure reads as follows: “ The bill of exceptions is grounded on the objection made to the ruling of the court on some purely
incidental question
arising during the progress of the cause; and involves the correctness of the conclusions drawn by the court from the facts recited in the bill.”
Most assuredly, a ruling of the trial court ordering the entry of a nolle prosequi in a criminal case, which dismisses the prosecution and ends the case is not a ruling on "some purely incidental question arising during the progress of the cause”. On the other hand, if instead of sustaining the plea of prescription and dismissing the prosecution the trial court overrules the plea, such ruling is purely incidental, from which no appeal by the accused lies for the simple reason that such ruling is not a final prejudicial judgment. The remedy of the accused in such circumstances would, of course, be to reserve a bill of exceptions to the ruling of the court which could be reviewed by this Court only
on appeal and after verdict.
.This was the jurisprudence of this Court long before the enactment of the Code of Criminal Procedure.
As stated in Marr’s Criminal Jurisprudence of Louisiana, 2d Ed., Vol. 2: “An appeal in criminal cases does not lie from an order or judgment overruling' the plea, a motion or other interlocutory matter which does not finally dispose of the case, but lies only from the sentence or final judgment, at which time are brought up for review alleged errors made by the lower court -in the 'progress of the case.”
-See also State v. Jackson, 140 La. 680, 73 So. 770.
' A caref-ul reading of the several articles of the Code of Criminal Procedure, particularly Article 500 thereof, leads to the conclusion that neither the authors of the Code of Criminal Procedure nor the Legislature which adopted it, contemplated that the State should reserve bills of exceptions in criminal cases, for the obvious reason that to do so would serve no useful purpose.
. In the case of State v. Sherman, 144 La. 76, 80 So. 205, it was said: “The right, of the state to appeal from a final judgment in favor of the accused has, .from our earliest jurisprudence, been recognized and sanctioned by the Constitution
only where a motion to quash the indictment or a motion in arrest of judgment has been sustained.”
(Italics ours.)
Since the rendition of that decision the Code of Criminal Procedure was adopted; and as heretofore pointed out, it was provided that the prosecution and the defense
have each the right in an appealable case,
to appeal from any final prejudicial judgment.
As properly stated in the Sherman case, supra, the State has no appeal from a verdict of acquittal in a criminal case. See Article 7, Sec. 10, Constitution of 1921. This being true, what benefit would the State derive from the reservation of a bill of exceptions during the trial of the case? If the trial results in an acquittal, the State, having no right of appeal, the correctness or incorrectness of interlocutory rulings of the trial judge could not be reviewed by this Court. If on the other hand,
the accused is convicted and the State wins its
case, what benefit could the State derive from objections made by it to the rulings of the court and bills of exceptions reserved thereto ?
Article 500 of the Code of Criminal Procedure provides in part that: “The bill of exceptions must show the circumstances under which and the evidence upon which the ruling complained of is based.”
However, continuing, that article provides that: “ * * * And
the accused
is without right to have taken down any evidence except that which is necessary as a basis for his bill; he cannot require that any evidence be taken down that appertains to guilt or innocence.” (Italics ours.) •
The reference here is to
the accused.
There is not a single article in the Code of Criminal Procedure expressly or by implication providing that in those instances where the State is permitted to appeal from a final prejudicial judgment, it is necessary for the State to reserve a bill of exceptions to the ruling of the court or that the evidence upon which the ruling complained of is based should be attached thereto.
The author of this opinion and the majority of this Court concede that when the State appeals from a ruling which is based upon evidence, as in this case, the record must contain “the evidence upon which the ruling complained of is based”, just as the bill of exceptions reserved by defendant must, as provided in Article 500 of the Code of Criminal Procedure, “show the circumstances under which and the evidence upon which the ruling complained of is based”.
It is not necessary, however, that the State should reserve a bill of exceptions to a judgment finally dismissing a prosecution for the purpose merely of incorporating therein “the evidence upon which the ruling complained of is based”. It suffices if the evidence has been taken down and forms a part of the transcript of appeal, as in this case.
We hold, therefore, that it was not necessary in this case for the State to except to the ruling of the trial court ordering the entry of a nolle prosequi and to reserve a bill of exceptions to such ruling in order for this Court to consider the evidence upon which such ruling was based. On the contrary, we are of the opinion that the evidence is properly before the Court. .
We come now to a consideration of the plea of prescription and the evidence offered in support thereof.
Article 8 of the Code of Criminal Procedure, as amended by Act 147 of 1942, provides in part as follows: “In felony cases when three years elapse from the date of finding an indictment, or filing an information, and in all other cases when two years elapsed from the date of finding an indictment, or filing an information or affidavit, it shall be the 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 to be entered the same as if entered by the district attorney.”
The accused in this case alleges that more than three years had elapsed from the date of the finding of the indictment against him and moved the court to order the entry of a nolle prosequi.
The State was ordered to show cause why this should not be done. The transcript fails to disclose that any answer to the rule to show cause was filed. However, the rule came on for trial and the evidence was adduced, whereupon, the trial judge sustained the motion and ordered the entry of a nolle prosequi.
The State contends that the trial judge erred in so ruling for the reason that the evidence taken on the trial of the rule shows that subsequent to the finding of the indictment, the prescription provided for in Article 8 of the Code of Criminal Procedure was interrupted by the absence of the defendant from the jurisdiction of the Twenty-fourth Judicial District Court
without the written consent of the Court first obtained and entered upon the minutes or filed in the record of the cause.
Article 9 of the Code of Criminal Procedure reads as follows: “Whenever it shall have been established to the satisfaction of any 'court in which any criminal prosecution shall be pending that the prescriptive periods as herein provided have elapsed since the last date upon which any steps shall have been taken by the state in such prosecution, and that the district attorney has not entered his nolle prosequi, the court shall order the dismissal of said prosecution, and the same shall not thereafter be revived; provided,
that the prescription established in Art. 8 hereof shall be interrupted by the absence of the defendant from the jurisdiction of said court without the written consent of the court, first obtained and entered upon the minutes, or filed in the record of the cause; provided, further, that the burden of proving' the accruing of the prescription herein established shall in all cases rest upon the pers'on alleging the same."
The evidence taken on the hearing of the rule shows beyond any doubt that during the three year period succeeding the filing of the indictment in this case, the accused did
without the written consent of
the court first obtained, absent himself from the jurisdiction of the 24th Judicial District Court.
From the evidence it appears that the accused worked on a towboat, and as a part of his duties thereon it was necessary for him to go outside of the State, and that he did go to Baytown, Texas, to Galveston, Texas, to Houston, Texas, and to Florida.
Learned counsel for defendant urges that the absence of the defendant referred to in Article 9 of the Code of Criminal Procedure contemplates such an absence which .would be material and bear some relation to the fact that the defendant has not been brought to trial. In his brief he says: “For the prescription to be interrupted, the defendant must have absconded, or been a fugitive from justice, or have escaped trial through dilatory pleas, or continuances obtained by him or in his behalf, or in some other way have been the cause of his case not being brought to trial. Certainly the absence must be of a permanent and substantial nature and such as to prejudice the case of the State.”
We can not agree with this contention. There is nothing contained in the proviso of Article 9 supporting this contention.
The language of Article 9 is very clear. If the provision requiring an accused, in order to prevent the interruption of prescription, to obtain- the written consent of the trial judge before leaving the jurisdiction of the court, is too drastic or unrea-’ sonable and works any hardship upon an' accused person released on bond pending trial, the amendment or qualification of the law should be made by the Legislature and not by the Court, it being the duty of the Court to interpret the provision
as written, and not as it should probably have been written.
It will be conceded that as the article now stands, prescription is interrupted if the accused goes from one parish to another, because to do so, would be to go
beyond the jurisdiction of the court.
This, however, affords no reason for this Court to change the language of the article or to say that it does not mean exactly what it says.
Unquestionably, if Article 9 of the Code of Criminal Procedure is to be applied in this case, and there is no reason why it should not be, the prescription of three years was interrupted by the absence of the accused from the State without the written consent of the court. This interrupted the running of prescription. The trial judge was therefore in error in holding to the contrary.
For the reasons assigned, the judgment of the lower court ordering that a nolle prosequi be entered in this cause and further ordering that the case be dismissed and that the accused be discharged is annulled, avoided, and reversed; and it is further ordered that this case be reinstated on the criminal docket of the 24th Judi
rial District ’ Court, there to be proceeded with according to law.
FOUR.NET, J., dissents and assigns written reasons therefor-
PONDER, J., dissents.
HAMITER, J., dissents for the reasons given by him in State v. LeBleu and also for the reasons assigned by Justice Four-net in his dissenting opinion herein.