Davis, Ronald L.

English

Louisiana State University: DigitalCommons @ LSU Law Center

Louisiana Law ReviewVolume 15 | Number 1Survey of 1954 Louisiana LegislationDecember 1954Criminal Procedure - Indictment - Interruption ofPrescription By Prior IndictmentRonald L. DavisThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationRonald L. Davis, Criminal Procedure - Indictment - Interruption of Prescription By Prior Indictment, 15 La. L. Rev. (1954)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol15/iss1/31LOUISIANA LAW REVIEWsimilar rulings in other areas of community life? The Negroplaintiffs in the present cases relied heavily upon the contentionthat the maintenance of separate public schools developed inNegro children an "inferiority complex." Is this a point ofdistinction in regard to cases alleging denial of equal protec-tion to Negro adults? There is strong support for such anargument; however, it is difficult to say that the Court willnot extend its views to encompass adults. The only certainconclusion that can be reached is that the "separate but equal"doctrine is still valid in regard to every type of state actionnot involving the public school system; exactly how long theweakened doctrine will withstand litigation in the future can-not be determined now.Huntington OdomCRIMINAL PROCEDURE-INDICTMENT-INTERRUPTION OFPRESCRIPTION BY PRIOR INDICTMENTIn January 1952 defendant was indicted for manslaughter.More than a year later, he was indicted again, this time for simplebattery. In the second indictment, the state alleged that thecharge was based on the facts forming the basis of "the indict-ment heretofore found," reciting the title and docket number ofthe prior indictment. Defendant entered a plea of prescription,which the trial court overruled. The Supreme Court grantedwrits of mandamus, prohibition and certiorari. Held, the indict-ment for simple battery did not negative prescription and wasfatally defective in its failure to state what offense the priorindictment had charged or to show what disposition had beenmade of the prior indictment. State v. Dooley, 223 La. 980, 67So.2d 558 (1953).The pertinent provisions of Article 8 of the Code of CriminalProcedure allow the state a period of one year after receivingnotice of the commission of a crime to file an indictment. If anindictment or information is filed within that period, prescriptionis interrupted.' Interpreting this provision, the Supreme Courthas held that where the state seeks to negative prescription by1. Article 8 further provides that if an indictment or information isfiled, and the state fails to act on this indictment or information for threeyears in felony cases or two in others, then the district attorney must entera nolle prosequi. See page 196 et seq. supra.[VOL. XVNOTESalleging that an indictment was filed before prescription ran, thestate must go further and specially allege that such indictmentor information was not quashed or dismissed more than one yearbefore the filing of the present information or indictment. 2 Thecourt applied that rule in the instant case and held that thesecond indictment did not negative prescription because it didnot state "what offense the relator was... charged with [in firstindictment] or what disposition had been made of the case.",Justice Hawthorne, dissenting, referred to his dissenting opinionin an earlier case, where he had expressed the view that, if asecond indictment alleged the timely filing of a previous indict-ment, the defendant should have the burden of showing thatthe earlier indictment had been quashed, nolle prosequied, orotherwise disposed of more than a year prior to the filing of thesecond indictment. 4Finding the indictment defective made it unnecessary for thecourt in the instant case to consider the question whether or notan indictment for manslaughter interrupts the prescription of aprosecution for simple battery. This question would be deter-mined by applying that part of Article 8 which allows the statea period of one year after the dismissal of an indictment to fileanother indictment "based on the same facts." Article 8 wasderived from the common law, where the rule is that the newindictment must charge the same defendant and substantially thesame offense.6 This rule is strictly applied. Courts in other juris-dictions have held, for instance, that an indictment for "seducingunder pretense of marriage" does not suspend prescription againsta prosecution for "seduction under promise of marriage";6 that acharge of operating a lottery does not suspend prescription of acharge of keeping a gaming table;7 and that an indictment forbetting at games played by four persons does not suspend pre-scription of an indictment for betting at games played by threepersons.8Under the common law rule, it does not seem that the indict-ment for manslaughter in the instant case would have interrupted2. State v. Jones, 209 La. 394, 24 So.2d 627 (1945). In that case, an infor-mation filed in October 1936 charged the defendant with burglary committedin July 1931. It was alleged that an indictment for the crime had been filedin October 1931, but what happened to the 1931 indictment did not appear.3. 223 La. 980, 983, 67 So.2d 558, 559 (1953).4. State v. Jones, 209 La. 394, 402, 24 So.2d 627, 630 (1945).5. Note, 90 A.L.R. 452, 461 (1934) collects the cases.6. Ross v. People, 62 Colo. 193, 162 Pac. 152 (1916).7. Buckalew v. State, 62 Ala. 334, 34 Am. Rep. 22 (1878).8. Jester v. State, 14 Ark. 552 (1854).1954]LOUISIANA LAW REVIEWprescription of the prosecution for simple battery. It is submittedthat the result would probably be the same in Louisiana, sincemanslaughter and simple battery are distinct offenses belongingto different generic classes.9 This position finds additional sup-port in Article 386 of the Code of Criminal Procedure dealingwith responsive verdicts, which provides that a verdict of simplebattery is not responsive to an indictment charging man-slaughter.10Ronald L. Davis, Jr.FAMILY LAW-ILLEGITIMATE CHILDREN-PROOF OF PATERNITYPlaintiff sued to have the defendant declared the father ofher illegitimate child and to obtain support of the child. Defen-dant admitted his intimacies with the plaintiff and also admittedthat he had contributed to the support of the child. During thetrial the plaintiff admitted that she had attempted intercoursewith a man other than the defendant. The trial court found thatthe plaintiff was not a woman of dissolute manners and heldthat since the plaintiff had never had an unlawful connectionwith any man other than the defendant her oath was sufficientto establish the paternity of the child. On appeal, held, affirmed.The trial court was correct in giving judgment on the basis ofthe mother's oath, but should also have held that the defendant'ssupport of the child, his admission that he might be the father,and his failure to deny paternity constituted an acknowledgmentof paternity. Rousseau v. Bartell, 224 La. 601, 70 So.2d 394 (1954).9. For a discussion of the "generic" classification of offenses, see Com-ment, 5 LouIsIANA LAW REVIEW 603, 604 (1944).10. Art. 386, LA. CODE OF CraM. PROC. (1928): "The only responsive verdictswhich may be rendered, and upon which the judge shall charge the jury,where the indictment charges the following offenses are: . . . Manslaughter:Guilty as Charged. Not Guilty."Different considerations are involved in the problem of former jeopardy.There a distinction is drawn between the situation where two separatecrimes having some common characteristics arise out of the same series ofacts, and where a single criminal act constitutes a violation of two or morestatutes or articles of the Criminal Code. Former jeopardy principles shouldbar subsequent action under the latter circumstance but not the former. SeeThe Work of the Louisiana Supreme Court for the 1946-1947 Term-CriminalLaw and Procedure, 8 LOUISIANA LAW REVIEW 281, 290 (1948). In the instantcase a prosecution or acquittal for manslaughter would definit3ly bar a prose-cution for the battery.[VOL. XV

Criminal Procedure - Indictment - Interruption of Prescription By Prior Indictment

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2196&context=lalrev

Criminal Procedure - Indictment - Interruption of Prescription By Prior Indictment

Abstract

Similar works

Full text

Available Versions

Louisiana State University: DigitalCommons @ LSU Law Center