State v. Precovara

21 So. 724, 49 La. Ann. 593, 1897 La. LEXIS 607

• Court: Supreme Court of Louisiana
• Decided: March 29, 1897
• Docket: No. 12,453
• Status: Published

Opinion

The opinion of the court was delivered by

Breaux, J.

An information for a prescriptible offence was filed.

A plea of prescription was interposed as a bar to the prosecution.

On the trial of this plea it was proved that an indictment had been found, which, upon a motion made by the defendant to quash, was-quashed by the court.

Whereupon the District Attorney filed an information.

The judgment of the District Court sustained the plea of prescription.

From the judgment the District Attorney has taken this appeal.

The defendant could not be legally convicted. The information did not negative prescription. The defendant had not failed to sus - tain his plea. The indictment was, upon this plea, decreed null.

The indictment which had been declared null did not interrupt prescription. No appeal was taken from the court’s order annulling it; it was as if it had not been found against the defendant.

This court has decided in a number of cases that a prior prosecution upon a fatally defective iudictment does not interrupt prescription, State vs. Morrison, 31 An. 211; State vs. Baker, 30 An. 1134: State vs. Curtis, 30 An. 1166.

The year having elapsed from the date, it was alleged in the information that the crime had been committed, to the date the information was filed, our only alternative is to affirm the judgment of the District Court.

It is therefore ordered, adjudged and decreed that the judgment of the District Court is affirmed.