209 La. 394

#### STATE v. JONES. In re JONES.

No. 37976.

Supreme Court of Louisiana.

Dec. 10, 1945.

Dissenting Opinions Dec. 27, 1945 and Dec. 31, 1945.

Eugene Stanley, of New Orleans, for relator.

Ferd C. Claiborne, Dist. Atty., of New Roads, and Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Sp. Asst. Atty. Gen., for respondent.

KENNON, Justice.

In 1936, the relator was found gu'ilty of burglary in the nighttime and, after being adjudged a fourth offender, was sentenced to a life term in the State Penitentiary. No appeal was taken.

On June 5, 1945, his attorney filed in the trial court a “Motion to Quash Illegal Information, set aside illegal verdict and annul illegal sentence, etc,”, alleging:

> “That, as will be seen from the record herein, under the No. 5464 of the docket of this Honorable Court, an Information was filed against your Mover, on October 29, 1936, by the Honorable Hewitt Bouan-chaud, then District Attorney, wherein your Mover was charged:

> “1. That your mover did * * * on the 24th day of July, 1931, in the nighttime, feloniously and burglariously break and *628enter into the merchandise store of one W. H. Duckworth, with intent to steal;

> "2. That your Mover had been convicted on the 9th day of July, 1921, of the crime of burglary, in the 2nd Judicial District Court in and for the parish of Bossier, and sentenced for not more than five years nor less than four years at hard labor in the state penitentiary.

> “3. That your Mover, on the said 9th day of July, 1921, had been convicted of the crime of larceny in the 2nd Judicial District Court in and for the parish of Bossier, and sentenced for a period of not more than 12 months nor less than 6 months at hard labor in the State penitentiary.

> “4. That your Mover, on the said 9th day of July, 1921, was convicted of the crime óf burglary in the 2nd Judicial District Court in and for the Parish of Bossier, and sentenced for a period of not more than 10 years nor less than seven years at hard labor in the State penitentiary.

> “5. That your Mover, on the said 9th day of July, 1921, had been convicted of the crime of larceny, in the 2nd Judicial District Court for the Parish of Bossier, and sentenced to a term of not more than 2 years nor less than 1 year at hard labor in the State penitentiary,

> and further,

> “6. That the crime herein first charged is the same in Indictment filed in this court October 19, 1931, bearing number 4989 of the criminal docket of this court, contrary to the form of the statute, etc.’ ”

The principal grounds alleged for setting aside the 1936 verdict and sentence and quashing the above information are :

That the crime charged is prescriptible under Article 8 of the Louisiana Code of Criminal Law and Procedure; that paragraph 6 above quoted is not a sufficient negation of prescription and, therefore, the information is fatally defective; and that the district attorney committed reversible error by including in the information counts 2, 3, 4 and S, charging the relator with having committed fou'r separate felonies in another parish, thereby prejudicing the petit jury by placing his character and criminal record before the jury, without his having taken the stand as a witness in his own behalf.

The district judge ordered the prisoner to be brought from the penitentiary into court, and directed the State to show cause why the verdict should not be set aside, the sentence annulled, and the information quashed. After trial, he rendered judgment in favor of the State, dismissing the motion and orders to show cause predicated thereon. The relator presented a bill of exception and requested orders of appeal.

The district judge declined to sign the’ bill of exception or to grant the appeal. Upon application by the relator, a rule was issued by this Cou’rt and a writ of certio-rari, without a stay order, was directed to the district judge, the district attorney and the Attorney General.

The State, in its answer to the relator’s application for writs, contends that the relator is without right of appeal because the prosecution terminated when he entered the Penitentiary to serve his sentence, but concedes that the relator was entitled to a writ of certiorari, in order that this Court might determine, under its supervisory powers, whether he was entitled to relief upon the face of the record. However, this point has passed out of the case, as the entire record is now before us on certiorari and it contains fatal errors patent upon its face.

**The information filed October 29, 1936, charges a crime committed more than five years previously. The last paragraph does not constitute a sufficient negation of prescription. The statement “That the crime * * * charged is the same * * ■* ” as charged “ * * * in indictment filed * * * October 19, 1931”, amounts to a statement that prescription was interrupted on the date the first information wás filed (October 19, 1931), and for all the 1936 information discloses, this 1931 charge could have been quashed or nol prossed, or disposed of by trial at any time prior to November 12, 1935 (one year before filing of the new charge). Thus, the information does not clearly negative prescription. This Court has uniformly held that an information or indictment which fails to negative prescription is fatally defective. State v. Bischoff, 146 La. 748, 84 So. 41, and cases cited therein; State v. McNeal, 159 La. 386, 105 So. 381; and State v. Oliver et al., 193 La. 1084, 192 So. 725.

Likewise, the State contended that the recitals in paragraphs 2, 3, 4 and 5 of the four previous convictions did not render the information invalid and that these four *629recitals of separate felonies previously-committed by the defendant could be considered as unnecessary allegations and rejected as surplusage.

In State v. Brown, 185 La. 1023, 171 So. 433, this Court held it is fatally defective for evidence of a prior conviction to go to a jury, stating: “* * * ‘The general rule is that, when a man is pu't upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that other offenses committed by him are *wholly*excluded.’ ” (Italics ours.)

To include in the information, upon which a defendant is placed on trial before a jury, accusations that the defendant had previously been convicted of four separate and unrelated felonies, has the effect of immediately placing his character and previous criminal record before the jury, without the defendant having taken the stand as a witness in his own behalf. ' This is prejudicial to the rights of the accu'sed and fatal error.

For the reasons assigned, the verdict rendered against the relator in this case is set aside, the sentence annulled, and the information quashed; the Superintendent of the State Penitentiary will deliver the relator, upon request, to the Sheriff of Pointe Coupee Parish,' to be brought before the Eighteenth Judicial District Court for that Parish, to answer such further proceedings as may be brought against him.

FOURNET, Justice

(dissenting).

The relator, who is serving a life term in the state penitentiary under his plea of guilty as a multiple offender following his conviction by a ju'ry on a charge of burglary, is seeking to have us issue a writ of mandamus ordering the district judge to allow him to file a bill of exceptions (which, according to the minutes of the court, was never reserved) and to grant him a suspen-sive appeal from the judgment overruling his motion to quash the information on which he was convicted, to set aside the jury’s verdict, and to annul his sentence; in the alternative, that this court grant him such an appeal; in the further alternative, in the event this court concludes he is not entitled to the appeal, that the district judge be ordered to maintain the defendant’s motion to quash the information and to set aside his conviction and sentence thereunder.

The basis for the relator’s motion to quash is (1) that the information is fatally defective for the reason that it shows on its face that the crime charged had not been properly negatived, and (2) that the “District Attorney committed reversible error by including in the said Information four additional (unnumbered) Counts charging your Mover with having committed previous felonies for which he had been sent to the Penitentiary in another judicial district of the State of Louisiana, and thereby prejudicing the petty jury against your Mover by placing his character before the jury, and submitting to the said jury Mover’s previou's criminal record, without your Mover having taken the stand as a witness in his own behalf.”

The Code of Criminal Procedure specifically provides that “Every objection to an indictment (or information) shall be taken by demurrer or by motion to quash such indictment, _ before the arraignment * * * ”, Article 284, and such motion “must be in writing, * * * tried and disposed of before trial on the merits.” Article 287. See, also, Article 253. It necessarily follows that a motion to quash comes too late after the defendant has served more than eight years of his sentence.

Errors patent on the face of the record can avail the relator nothing at this late date for they can only be reviewed by the district court on a motion in arrest of judgment filed after verdict and disposed of before sentence, Article 519, or by this court on an appeal timely taken, i. e., within ten judicial days after the rendition of the judgment complained of. Article 542.

A bill of information (or an indictment) is not only a procedural form required in bringing those violating the laws of this state before the • bar of justice, but it is also jurisdictional, for without it the courts are powerless to try or convict. See, Section 9 of Article I of the Constitution. It necessarily follows that when the relator failed to avail himself of his right to an appeal and began to serve the sentence imposed upon him, there was no longer any charge pending against him in the judicial district where he was convicted, and his remedy, if the basis for his motion were well-founded, is by a writ of habeas corpus. Articles 116 and 137 of the Code of Criminal Procedure. The only district judge having jurisdiction to entertain such a writ is the judge of the district in which he is *630being illegally detained. Article 114; State ex rel. Chicola v. General Manager of Louisiana State Penitentiary, 188 La. 694, 177 So. 804. Consequently, even though the defendant might be entitled to an appeal (which in my opinion he is not), an appeal in this case would avail him nothing.

Furthermore, it is my opinion that there is no merit to relator’s motion for the reasons expressed in the dissenting opinion of Justice HAWTHORNE, in which I fully concur.

For the reasons assigned, I respectfully dissent from the views expressed in the majority opinion.

HAWTHORNE, Justice

(dissenting).

The defendant (relator), Charley Jones, alias Tom Turner, charged in a bill of information filed on October 29, 1936, with the crime of burglary, was tried and adjudged guilty by a jury on November 5, 1936, in the district court in and for the Parish of Pointe Coupee. *On*November 12, 1936, defendant was charged in a bill of information as a habitual criminal, or as a multiple *offender.*To this charge he entered a plea of guilty and was sentenced by the court to serve the balance of his natural life at hard labor in the state penitentiary.

On June S, 1945, over eight years after the defendant had been tried, adjudged guilty, and sentenced to the penitentiary, and while he was serving his term in that institution, defendant through counsel filed a motion in the district court in which he had been tried, convicted, and sentenced, to quash the information, set aside the verdict, and annul the sentence. This motion was tried and by the district judge overruled.

Relator alleges that, after his motion had been overruled by the district court, he tendered to the district judge a formal bill of exception and also a motion for a sus-pensive appeal to this court, and that, upon objection by the district attorney, the judge refused to permit relator to file the formal bill of exception, refused to sign the bill, and refused to grant to defendant a sus-pensive appeal. Thereupon relator applied to this court for writs of certiorari, mandamus, and prohibition, which were granted.

Although relator prays in his motion filed in the district court that the verdict be set aside and the sentence imposed by that court be annulled, his attack is aimed entirely at the information. He alleges (1) that said information is null and void and of no legal *effect for the*reason that it shows on its face that the crime charged had prescribed, and (2) that the district attorney committed reversible error by including in said information the allegations that relator had been convicted of four previous felonies.

The majority opinion points out that the entire record is now before us on cer-tiorari, and that the record contains fatal errors patent on its face, said errors being that the information does not clearly negative prescription and is therefore fatally defective, and that to include in the information allegations of previous convictions had the effect of immediately placing the character and previous criminal record of the accused before the jury without his having taken the stand as a witness in his own behalf.

The bill of information under which relator was tried and convicted in case No. 5464 on the criminal docket of the district court charges him with the crime of burglary committed on July 24, 1931. In a subsequent paragraph of this information it is alleged that the crime therein charged was the same as that charged in a bill of information filed in the same court on October 19, 1931, bearing No. 4989 on the docket of that court. The bill of information in case No. 5464 was filed on October 29, 1936.

Article 8 of the Code of Criminal Procedure of the State of Louisiana, as amended by Act 21 of the Second Extra Session of 1935, being the law in force at the time the bill of information was filed under which relator was convicted, reads as follows insofar as it is applicable to this case:

> “No person shall be prosecuted, tried or punished for any offense, murder, arson, rape, robbery and counterfeiting excepted unless the indictment, presentment or information for the same be found, exhibited or filed, or unless an affidavit in misdemeanor cases that may be prosecuted by affidavit, be filed within one year after the offense shall have been made known to the judge, district attorney or Grand Jury having jurisdiction; * * *.

> *“Provided, that in all criminal prosecutions am, indictiruent or presentment found or exhibited, or an information filed, or an affidavit filed where the prosecution may be by affidavit, before the above prescription*
>       *631
>       *has accrued, shall have the effect of interrupting such prescription;*and if any such indictment, presentment, or information or affidavit be quashed, annulled or set aside, or a nolle prosequi be entered, prescription of one year and six months, respectively, as above provided, shall begin to run against another indictment, information or affidavit based on the same facts, only from the time that said original indictment, presentment, information or affidavit was quashed, set aside, annulled or nolle prose-quied.

> “In felony cases when *six 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.” (Italics here and elsewhere are ours.)

The crime charged was alleged to have been committed on July 24, 1931. Since the information in case No.>-4989 was filed on October Í9, 1931, 3ess than one year after tne offense was made known to tho judge, district attorney, etc., which fact is affirmatively shown in case No. 5464, the filing of the bill of information in case No. 4989 on October 19, 1931, had the effect of interrupting prescription, and, after the filing of said bill of information, the State had six years within which to try the accused for the offense named therein before it became the duty of the district attorney to enter a nolle prosequi if the accused had not been tried.

I am therefore of the opinion that the State affirmatively alleged an interruption of prescription by alleging in the information under which the accused was convicted of the crime of burglary that a bill of information charging him with the same offense was filed within the prescriptive period of one year.

The law requires no special form which must be followed in alleging an interruption of prescription in an indictment or information, and in the case of State v. Hinton, 49 La.Ann. 1354, 22 So. 617, this court held that it was not imperative to use the words of the statute in framing the averment to relieve the criminal prosecution from the prescription of one year.

Article 8 of the Code of Criminal Procedure, as amended, quoted hereinabove, provides in plain language that the filing of a bill of information before prescription has accrued shall have the effect of interrupting such prescription, and this is exactly what the State has affirmatively alleged and shown in the bill of information under which the accu'sed was convicted in this case — that is, that a bill of information was timely filed before prescription had accrued.

Since the State has affirmatively shown an interruption of prescription, for the defendant in this case to avail himself of a plea of prescription the burden was on him to show that prescription had not been interrupted and that it had accrued. Code of Criminal Procedure, Article 9; State v. Posey, 157 La. 55, 101 So. 869.

On the trial of the motion in the lower court, both relator and the State introduced in evidence the bill of information in case No. 4989, which information charged the same offense as that for which relator in this case was later convicted. The trial judge in his return to the rule issued herein points out that the record shows that this bill of information was nolle prosequied on October 29, 1936, and that a notation to this effect, made by the clerk of court, is shown on the bill itself, filed in evidence in this matter. The information in case No. 5464 on the docket of the court charged the same crime as that charged in the bill of information in case No. 4989. The bill of information in case No. 5464 was filed on October 29, 1936, the same day on which the nolle prosequi was entered, and was therefore filed less than one year and six months after the entering of the nolle pro-sequi and within six years after the filing of the bill in case No. 4989, pursuant to the provisions of the Code of Criminal Procedure in force at that time. Relator has therefore failed to sustain the burden of proof. On the contrary, the State has affirmatively alleged in the information an interruption of prescription and has shown conclusively that it had not accrued.

In the motion filed by relator in the trial court more than eight years after he had been adjudged guilty and sentenced to the penitentiary, and while he was an inmate of that institution, he urged the trial judge to quash the bill of information for the reason that it contained allegations that relator had been convicted of previous felonies. The majority opinion holds that such allegations had the effect of immediately placing the character and previous criminal record of relator before the jury without his having taken the stand as a *632witness in his own behalf, and that so to charge the previous convictions was prejudicial to the rights of the accused and constituted fatal error.

Relator, having been convicted of the crime of burglary, a crime which is punishable at hard labor in the penitentiary, had the right of appeal to this court under the provisions of Article VII, Section 10, of the Constitution, if such appeal were timely urged under Article 542 of the Code of Criminal Procedure, which provides that:

> “The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, *within ten judicial days after the rendition of the judgment complained of; * * **

Upon such appeal, this court could have considered any errors made in the lower court during the trial, if timely objections had been made thereto and bills of exception reserved, or, even further, any errors patent on the face of the record. Relator did not avail himself of his right to an appeal, but instead has elected to file a motion to quash the bill of information in the court of his conviction many years after his trial. In my opinion, the case was disposed of in that court by the imposition of the sentence, under the provision of Article 541 of the Code of Criminal Procedure that:

> “A case is finally disposed of by any judgment which dismisses 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 imu-poses sentence ”*

Relator contends that this is not a habeas corpu's proceeding for the reason that the court of Pointe Coupee Parish, the parish in which relator was tried and convicted, had no jurisdiction to issue a writ of habeas corpus to the keeper of the penitentiary in West Feliciana Parish, a point beyond its own territorial jurisdiction, and, further, that the keeper of the state penitentiary was not made a defendant, and that no writ of habeas corpus was ever issued herein. Due to the conclusions reached by the writer, it is not necessary to determine whether or not the district court for the Parish of Pointe Coupee would or would not have had jurisdiction of a habeas corpus proceeding in this case.

If relator is correct in his-contention that this is not a habeas corpu's proceeding, then the motion filed in the trial court is nothing more than a motion to quash the bill of information filed therein and comes too late, under the provisions of Articles 287 and 253 of’the Code of Criminal Procedure. These articles read as follows :

> “287. Both the demurrer and the motion to quash must be in writing, must specify the grounds upon which based and must be filed, tried and disposed of before trial on the merits.”

> “253. No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court in its discretion permit. * * * ”

I respectfully dissent, and for the reasons hereinabove given I am of the opinion that the rule issued herein should be recalled and dismissed, and that the judgment of the lower court overruling relator’s motion should be affirmed.