45 So.2d 897

#### STATE v. BRADFORD. In re BRADFORD.

No. 39594.

Dec. 9, 1949.

On Rehearing March 20, 1950.

*35Michael E. Culligan, Jr., New Orleans, for relator.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., New Orleans, for respondent.

MOISE, Justice.

Writs were granted herein under our supervisory jurisdiction to finally review the judgment of the Criminal District Court for the Parish of Orleans denying relator’s demand for dismissal of an indictment for forgery on the plea of three years’ prescription, filed under the provisions of Article 8 of the Louisiana Code of Criminal Procedure, as amended.

Our examination of the record establishes the following facts:

The Grand Jury of the Parish of Orleans returned the indictment (Case No. 121-318) against Oliver F. Bradford on May 21, 1946. The case was originally allotted to Section *"A”*of the Criminal District Court for the Parish of Orleans, and an arraignment was set for May 29, 1946, but was continued to June 5, 1946 by the defendant. On that day the defendant filed a motion to quash, which was fixed for trial on June 14, 1946. On June 14, 1946, the motion to quash was overruled, as were also a demurrer and a motion to elect, which had been presented on that day. On the same date the defendant also submitted an application for a bill of particulars, which was taken under advisement by the court until June 21, 1946. On June 21, 1946 the court deferred judgment on the application for a bill of particulars until June 26, 1946, and on the latter date it further deferred judgment on that application until August 2, 1946. However, no judgment was ever rendered in Section “A”. Under the *37provisions of Section 3 of Act 109 of 1948, the case was reallotted on July 3, 1948 to Section *“F”*of the Criminal District Court. The case finally having been called on June 21, 1949, defendant filed a plea of prescrip-' tion, and a hearing thereon was continued *by the*court *because*of other matters 'before it. The minute entry on July 5, 1949 shows that the case was then continued until July 11, on the defendant’s motion. On that day, the plea of prescription was overruled, and the motion for a 'bill of particulars originally filed in Section “A” was denied and the case set for trial on August 30, 1949. On August 24, 1949, defendant applied to this Court for writs of certiorari, prohibition and mandamus. The per curiam handed down on September 1, 1949 by the judge of Section “F” states that the motion for a bill of particulars had interrupted prescription, so that the subsequent plea of three years’ prescription could not be sustained. On September 12, 1949, defendant filed a supplemental application for writs of certiorari, prohibition and mandamus, alleging that the judge of Section “F” (to which this case was reallotted in 1948) had not been fully aware of all the circumstances attendant on the failure of the judge of Section “A” to render an immediate decision on the motion for the bill of particulars filed in 1946. It is stated by defendant that that inaction was prompted by the District Attorney’s advice not to pass on said motion as he intended to prosecute .defendant Bradford on two other indictments, campanion to the indictment prosecuted in this case (No. 121-318). On September 15, 1949, the judge of Section “A” responded to the supplemental application for writs, averring that he was not a legal party to the proceedings, since he had not rendered the ruling or order complained of. On September 21, 1949, the State filed its opposition to the defendant’s application, and on September 27, 1949, defendant answered the opposition and made a supplemental application for writs of certiorari, prohibition and mandamus involving the two companion cases, Nos. 121-265 and 121-317. These cases are not before us as no record has been sent up.

The issue presented to us for determination in the instant case is the correctness of the trial judge’s ruling that defendant’s motion for a bill of particulars, filed on June 14, 1946, interrupted the running of three years’ prescription on the indictment. Article 8 of the Code of Criminal Procedure 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 elapse 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 *39to be entered the same as if entered by the district attorney.

> “Nothing in this article shall apply or extend to an accused person who has absconded, or who is a fugitive from justice or who has escaped trial through dilatory pleas, or continuances obtained by him or in his behalf. (As amended, Acts 1935 (2nd E.S.), No. 21, § 1; 1942 No. 147, § 1.)”

The State vigorously urges objection to the sustaining of the plea of prescription by contending that the accused has escaped trial through dilatory pleas and continuances obtained by him or in his behalf; and secondly, that the plea of prescription should not be sustained because the defendant has waived his right to a speedy public trial by not demanding same.

Both of these pleas must be considered in the light of the Bill of Rights of the Constitution of the State and the interpretation to be placed thereon. In considering the provisions of the article of our Constitution which provides for a speedy trial, we must also look into the intent of the original Bill of Rights — the guarantee of protection to individual citizens from arbitrary methods of prosecution and trial. The right of a speedy trial is a direction to the government and its agents to carry into effect such a provision in the interest of the accused, as well as a privilege granted to the accused. Thus, we have a twofold objective — the State *must proceed*and the accused *can demand.*The accused’s failure to assert his right does not relieve the State from its obligation of proceeding. The former’s right is so correlated with the latter’s obligation that a consideration of either involves a discussion of both.

An accused must be informed of the nature and character of the charge made against him, and the charge must be clearly set forth, before he can answer thereto by pleading his innocence or guilt. Under our Criminal Code, we have adopted a short form of indictment. The plea for a bill of particulars must necessarily be construed and considered in connection with the demand to be informed as to the nature and character of the charge. It relates to a matter of substance and a constitutional right. However, there is no need for a discussion on this point because the record clearly reveals that from June 14, 1946, the date of the alleged interruption by the filing of the motion for a bill of particulars, until June 21, 1949, the date the case was finally called, a period of more than three years had elapsed during which neither prosecution nor defense did anything in this matter. Certainly, the defendant had no control over the prosecution’s inaction. There was nothing he could do; he had filed a motion for a bill of particulars to be informed of the nature and character of the offense, and he did not even have to plead to his guilt or innocence until that was furnished.

We do not find from the facts of this case that the defendant comes within the *41exception of Article 8 of the Code of Criminal Procedure, which provides: *“Nothing in this article shall apply or extend to an ■accused person** * * *who has escaped trial through dilatory pleas, or continuances obtained by*him or in his behalf.” (Italics mine) so as to prevent him from obtaining relief against prosecution beyond the prescriptive date of three years.

A motion for a bill of particulars in a criminal case could not be termed as dilatory by its nature, because it is a necessary adjunct to the use of the short form of indictment to prevent the violation of the constitutional rights of an accused. The failure to act for whatever reason by a court or by a district attorney or by both should not be resolved as a matter of omission and fault of a defendant.

For the reasons assigned, the ruling of the trial judge is reversed and set aside, and the defendant’s plea of prescription of three years is sustained, and it is ordered that a peremptory writ of prohibition issue herein, directed to Hon. Niels F. Hertz, Judge of Section “F” of the Criminal District Court for the Parish of Orleans, prohibiting further proceedings in the prosecution complained of, and that the charge against Oliver F. Bradford be nolle prosequied.

HAWTHORNE, J., dissents and assigns written reasons.

McCALEB, J., concurs in the decree.

HAMITER, J., dissents for the written reason assigned by HAWTHORNE, J.

HAWTHORNE, Justice

(dissenting).

In my opinion the ruling of the trial judge overruling the plea of prescription is correct. As long as the district judge had under advisement the defendant’s application for a bill of particulars, the State could not proceed to trial. The law could not contemplate imposing a duty on the State to try a defendant when in law it was impossible for the State to proceed because of a procedural move of that defendant. It is true that the Constitution guarantees to the accused in criminal cases a speedy trial, and it is equally true that the law of this state places upon the district attorney the duty of trying an accused within three years, but it was never intended that the delay of the judiciary in passing on a plea of the accused could be considered as delay by the district attorney to deprive the accused of a speedy trial. The application of the defendant for a bill of particulars was a dilatory plea which operated to delay his trial and places this case in the exceptions to Article 8 of the Code of Criminal Procedure, so that the accused was not entitled to have the indictment nol-prossed.

The effect of the reasoning in the majority opinion is far-reaching, and in my opinion places a duty and responsibility on the district attorney which the law never intended. Numerous examples could be set out wherein an accuáed might *43not be brought to trial within three years, and the State would not be responsible for the delay, but one example will suffice to illustrate the point. Let us assume that an accused is successful in having an indictment quashed within the three-year period; that the State appeals, as it has a right to do, just as the accused had the right to apply for a bill of particulars in the instant case; that, because of the delay for the appeal to be heard and the delay during which this court keeps the case under advisement, the decision reversing the district court is not rendered until after the three-year period. By the decision in the instant case the district attorney could be compelled, and it would be his duty, to nol-pros the indictment. If the delay caused by the district judge’s having a pre-trial matter under advisement can be counted in computing the three-year period, the delay caused by the Supreme Court’s having the matter under advisement can also be counted.

The view taken by this court in State v. Theard, 203 La. 1026, 14 So.2d 824, if applied here, would better promote the ends of justice. In that case the accused could not be tried because he had been committed to an institution on the plea of present insanity. After three years, upon regaining his sanity, the defendant moved that the bill of information be nol-prossed. This court held that the State could not be compelled to nol-pros the information because it had been prohibited by law from bringing the accused to trial. This reasoning is equally applicable to this case, for here the State has been prevented by a plea of the defendant from bringing him to trial.

The judiciary should protect and defend at all times the right of an accused to a speedy trial, but at the same time the interest of the State and the public generally in apprehending and punishing criminals should not be disregarded.

I respectfully dissent.

On Rehearing

LE BLANC, Justice.

This case is before the court on a rehearing granted the appellee, State of Louisiana.

As is noted in the majority opinion on the original hearing, this is a felony case in which there was a plea of prescription filed, based on the fact, as appeared from the record, that three years had elapsed from the date of finding an indictment without the accused being tried.

Article 8 of the Code of Criminal Law and Procedure makes it incumbent on the District Attorney, in such cases, to enter a nolle prosequi, and if he should 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 article prescribes further that none of its provisions “shall apply or extend to an accused person who has absconded, or who is a *45fugitive from justice or who has escaped trial through dilatory pleas * *

The State had contended that the accused had escaped trial through a dilatory plea when he filed an application for a bill of particulars which was received by the Court, ordered filed and taken under advisement, where it remained in abeyance and was not acted on until more than three years had elapsed from the date of the indictment. The question at issue was whether or not the application for a bill of particulars constituted such a dilatory plea as is contemplated in the article of the Code of Criminal Law and Procedure from which we have just quoted. The trial judge evidently held that it was, since he over-ruled the plea of prescription. On reviewing his ruling on writs which had been granted, this court, in a majority opinion, held that he was in error and consequently reversed his ruling and rendered a decree sustaining the plea of prescription. It ordered that a peremptory writ of prohibition issue to Honorable Niels F. Hertz, Judge of Section “F” of the Criminal District Court for the Parish of Orleans prohibiting further proceedings in the prosecution complained of.

After a careful review of the majority opinion on the original hearing we have reached a different conclusion and now hold' that the application or motion for a bill of particulars was such a dilatory plea as was intended under Article 8 of the Code of Criminal Law and Procedure and through which the defendant had escaped trial up to the time it was acted on in the. district court.

The Code of Criminal Procedure does, not define a dilatory plea and there is no-reason we can think of why the definition of such plea as given in the Code of Practice of Louisiana should not apply. According to the definition as found in Article 332, they are exceptions “such as do not tend to defeat the action, but only to-retard its progress; * * *.” Certainly that is the light in which a plea for a bill of particulars must be regarded in a criminal case. It is comparable to an exception of vagueness in civil matters and merely calls for more information by the-accused before he thinks he should be-made to plead to the indictment so that he can better prepare his defense. It by-no means defeats the charge that is made-in the indictment and only tends to delay the progress of the prosecution. To this, extent, it will be necessary to reverse the judgment rendered in the original hearing.

However, under the situation that is; presented in this case, we find it impossible to render a final decision at -this time.

It strikes us as being a most unusual circumstance for a trial court to hold a plea such as an application for a bill of particulars under advisement for as long a-period as was done in this instance. No-reason for the delay appears from the rec*47•ord but we think that one must have existed. Whilst the matter was pending, a new division of the Criminal District Court for the Parish of Orleans was created by Act 109 of 1948 and it became necessary •in pursuance of the provisions of that act to reassign and reallot all the cases pending before that Court. Necessarily that involved some time and considerable work and it may be that some of the delay may thus be accounted for. At any rate we have concluded that the cause of the delay should be ascertained so that we can more intelligently pass on the merits of the plea of prescription.

The State is interested in seeing that an .accused be made to stand trial for an offense with which he is charged, and the .accused, on the other hand, is entitled to preserve every legitimate right of defense he may have. We are unable to pronounce judgment in the state in which the record stands. As we believe that the interest of justice will best be served by remanding the case to the district court, for the purpose of finding out, if possible, what was the cause of the delay in the ruling on the plea for a bill of particulars, and •of ascertaining whose fault it was, if there was any fault, that it was not acted •on before, we have concluded to do so.

For the reasons stated, it is ordered that the former judgment herein be reversed, set aside and annulled, and it is now further ordered that this case be remanded '.to Section “F” of the Criminal District Court for the Parish of Orleans, to be proceeded with in accordance with the views herein expressed.

MOISE, J., dissents, believing that original decree should be reinstated, and will assign reasons.

MOISE, Justice

(dissenting).

Under the law, since the adoption of the short form of indictment, the filing of a bill of particulars in a criminal case is a matter of right. State v. Bessar, 213 La. 299, 34 So.2d 785; State v. Chanet, 209 La. 410, 24 So.2d 670 and State v. Masino, 214 La. 744, 38 So.2d 622. More than three years has expired since the filing of the bill of particulars in the instant case and no further action has been taken by the prosecution since that time. Therefore, the prescription of three years has accrued. To deny defendant the right to avail himself of prescription, the interruption of an accrued prescription must be through some fault of the defendant such, as being a fugitive from justice, or the continual filing of dilatory pleas, obtaining continuances, and obstructing the prosecution; or there can be an interruption when we have a situation as in the Theard suit where the prosecution could not proceed because of the commitment of the accused by the court to an institution for the insane. There are many ways in which the State could set the prosecution in motion were it not dilatory. If a judge has a suit under advisement over thirty days *49the State has a right under the law to a mandamus to compel action. A defendant should not be denied a right because of the failure of the prosecution to act. The defendant being without fault, the original decree should be reinstated. I respectfully dissent.