
    (114 So. 641)
    No. 28842.
    STATE v. FRADELLA.
    Oct. 31, 1927.
    Dissenting Opinion Nov. 5, 1927.
    
      (Syllabus by Editorial Staff.)
    
    1. Criminal law &wkey;>l 78 — Defendant, acquitted of burglary, is immune from further prosecution therefor, and nolle prosequi entered after verdicj has no legal effect.
    Where original information charged defendant with burglary, for which he was tried and acquitted by jury, defendant was immune from further prosecution for burglary, and nolle prosequi entered after verdict has no legal effect.
    2. Criminal law <&wkey;202(2) — As to former jeopardy, larceny is not element of burglary, nor essentially included therein.
    As regards plea of autrefois acquit, crime-of larceny is not an element in. crime of burglary, nor is it essentially included therein.
    3. Criminal law <&wkey;>!60 — Information for larceny, brought 17 months after information for burglary charging larceny as expressing defendant’s intent, held barred by prescription, where defendant was acquitted of burglary before information thereof was nolle prosequied (Rev. St. § 986, as amended by Act No. 73 of 1898).
    Where state, having all facts in its possession, elected to prosecute defendant for crime of burglary alone, charging larceny merely as expressive of intent with which crime alleged was committed, and did not prosecute defendant for larceny as separate offense, and defendant was acquitted of burglary before district attorney entered nolle prosequi on original information, prescriptive period under Rev.. St. § 986, as amended by Act No. 73 of 1898, for crime of larceny, began to run when original information was filed, and subsequent information for larceny alone, filed 17 months after original information, was barred by prescription.
    Thompson, J., dissenting.
    Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.
    Salvador, Fradella was prosecuted for larceny, and filed a plea of prescription. From a judgment sustaining the plea and discharging accused, the State appeals.
    Affirmed.
    Percy Saint, Atty. Gen.-, and John E. Eleury, Dist. Atty., of Gretna (E. R. Sehowalter, Asst. Atty. Gen., of counsel), for the State.
    A. T. Higgins, of New Orleans, and J. K. Gaudet, of Gretna, for appellee.
   ROGERS, J.

On November 18, 1925, an information containing one count was filed in the district court, charging appellee with burglary and larceny committed on the previous day. Upon the trial of the ease, the accused was found guilty of larceny. He applied for a new trial, which was granted; the trial judge ruling that under the charge as laid in the information the accused could be found guilty only of burglary or not guilty. Later, he was again called for trial on the same information, and, after the jury had been impaneled, filed a plea of autrefois acquit. The court below sustained the plea, and the judgment was affirmed by this court. See State v. Fradella, 162 La. 1067, 111 So. 423.

On May 4, 1927, the district attorney entered a nolle prosequi of the information on which appellee was tried, and immediately thereafter filed a new information charging him with the commission of the crime of larceny on May 17, 1925. In this information the district attorney set forth the filing of the prior information charging the accused with burglary and larceny, averred that this court had maintained a plea of autrefois acquit to the crime of burglary charged therein, and that the said information was nolle prosequied.

When the case was called for trial on the new information, defendant filed a plea of prescription founded on Rev. Stat. § 986, as amended by Act 73 of 1898. The plea was sustained, and the accused discharged. Prom this judgment the state has appealed.

The information charging appellee with burglary and larceny was -filed on November 18, 1925. The present information for larceny was not filed until May 4, 1927. Hence more than a year had elapsed since his alleged offense was made known to a public officer having power to direct a public prosecution. The prescription invoked by appelleeis applicable, unless it be interrupted as provided in the ultimate paragraph of the statute. This paragraph reads:

“In all criminal prosecutions for any crime or offense an indictment found, or an information filed, before prescription has from any cause accrued, shall have the effect of interrupting prescription; and if said indictment or information be quashed, annulled, or set aside, or a nolle prosequi entered, prescription shall begin to run against another indictment or another information based on the same facts, only from the time that said original indictment or said original information was quashed, annulled, or set aside, or a nolle prosequi entered; and the prescription and exemption herein above provided shall not apply to any conviction under said other indictment, but, on the contrary said prescription or exemption shall not be pleaded against such offense.”

The original information against the appellee was neither “quashed, annulled, or set aside.” It charged him with burglary, for which he was tried and acquitted by the jury. Because of the acquittal, he is immune from further prosecution for said offense, and the nolle prosequi entered after the verdict has no legal effect. State v. Byrd, 31 La. Ann. 419.

The crime of larceny is not an element in the crime of burglary, nor is it essentially included therein. The facts justifying a charge of burglary are quite distinct from the facts warranting a charge of larceny. Nevertheless, with all the facts in his possession, the law officer of the state elected to prosecute appellee for burglary alone, charging larceny merely as expressive of the intent with which the crime alleged was committed. He did not attempt to prosecute appellee for larceny as a separate and distinct offense until the present information was filed, more thán 17 months after he had knowledge of the crime. At that time, however, the prescription pleaded by appellee had accrued.

Counsel for appellant cite State v. Gibson, 108 La. 464, 32 So. 332. The case is not appropriate. After committing the offense, the accused at once fled from justice, and was not apprehended until approximately 4 years thereafter. He then succeeded in annulling the indictment on a motion to quash, but another indictment, curing the defects and averring his flight as interrupting prescription, was immediately found. His plea of prescription of one year in bar of prosecution under the second indictment was properly overruled, because the court found that prescription had been interrupted as alleged in the indictment.

Counsel for appellant also cite State v. Diskin, 35 La. Ann. 46. That case is also inappropriate to the question presently under consideration. There it was held that an indictment for murder interrupts prescription for manslaughter, if filed within a year after the commission of the offense. That was because murder and manslaughter belong to the same generic class of crimes. An indictment for murder constitutes in legal intendment a prosecution for manslaughter, and the jury is authorized to return a verdict accordingly.

The other cases referred to in appellant’s brief likewise have no bearing upon the issue before us.

For the reasons assigned, the judgment appealed from is affirmed.

THOMPSON, J.

(dissenting). The defendant was charged in one count of an information with two crimes: (1) Of breaking into a box car in the nighttime, with specific intent to steal the goods and chattels therein; ánd (2) with the larceny of such goods and chattels to the value of §80.

On a trial he was convicted of the charge of larceny, but the conviction was set aside, because that crime could not be legally charged in an information for burglary.

Thereafter the state offered to put the accused on trial again for burglary, but the court held that he had been acquitted of that charge, and could not again be called on to answer therefor.

In other words, this court ruled that, while the verdict. of larceny was. illegal, and not responsive to the charge of burglary, such null verdict operated nevertheless an acquittal of the graver crime.

Three of the justices did not subscribe to the principle therein applied, which gave to the verdict of the jury a dual effect, to wit, an illegal conviction of the one crime and a legal acquittal of the other.

The state then proceeded, under an information filed by the district attorney, to prosecute for the crime of larceny, and was met by a plea of prescription, which was sustained by the trial judge, and that ruling is affirmed by the opinion herein handed down.

If Act 73 of 1898 does not apply in this case, then I am unable to conceive of a case in which there could be an interruption' of prescription by a defective indictment or information filed within the time prescribed.

Under the ruling herein,,the statute becomes a dead letter, and may as well be repealed.

The statute clearly provides that, where an indictment or information, charging any crime is filed before prescription has accrued, it shall have the effect of interrupting prer scription. And, should the said indictment or information be quashed, annulled, or set aside, or a nulle prosequi entered, prescription shall begin to run against another indictment or another information based on the same facts only from the time that said original indictment or said original information was quashed, annulled; or set aside, or a nolle prosequi entered, and the prescription and exemption therein provided shall not apply to any conviction under said other indictment or information, on the contrary, said prescrip-; tion or exemption shall not be pleaded against such offense.

The last information was filed by the district attorney within the year following the setting aside of the conviction for larceny under the previous information. And the last information was based on the same state of facts, regarding the offense of larceny, as was the original information. The charge of larceny in the original information was about as full and complete as it could have been made in a separate count of the same information or in an independent information for the crime of larceny.

We repeat, therefore, that no clearer or more perfect case could be imagined for the application of the plain language of Act 73 of 1898 than the one here presented.

But it is stated in the opinion herein handed down that the original information was neither “quashed, annulled, or set aside.” That is true in so far as it relates to the charge of burglary, but it is not true in so far as concerns the charge of larceny.

The court distinctly held in the former opinion that the defendant could not be tried for larceny under that first information, because that crime could not be legally included in an information for burglary. So that, by that decision of this court, the prosecution for larceny under'the original information was put at an end, and terminated about as completely and effectively as could have been done by a mere formal decree specially quashing, annulling, and setting aside the charge of larceny contained in the original information.

There was, in my judgment, no necessity, after that ruling, for entering a nolle prosequi of the original information as a condition precedent for filing the second one.

It is also stated in the opinion herein handed down that the crime of larceny is not an element in the crime of burglary, nor is it essentially included therein. This statement, in my judgment, is not wholly correct.

I concede that the original information filed against the defendant was fatally defective, in so far as it attempted to charge the crime of larceny, for the reason that the burglarious act charged is a felony under section 1 of Act 47 of 1890, and triable by a jury of twelve, whereas larceny of an amount as stated in the information is not an absolute felony, and can only be tried by a jury of five.

Hence the two offenses could not be charged in the same information, even in separate counts.

This, however, has not always been the ease in this state.

Anterior to the passage of Act 35 of 1880, burglary and larceny were subject to the same mode of trial, and could be legally charged in separate counts of the same indictment or information. State v. Malloy, 30 La. Ann. 61; State v. Depass, 31 La. Ann. 487.

And, even under the present system of jury trial, burglary and larceny may be charged in separate counts of the same information or indictment, where the burglary charged is punishable by imprisonment with or without hard labor, and hence triable by a jury of five, and where the larceny charged is of such an amount as entitles the accused to be tried by a jury of five. State v. Natcisse, 133 La. 584, 63 So. 182; State v. Hataway, 153 La. 758, 96 So. 556.

There can be no burglary as charged against the defendant, without a specific intent of stealing the goods and chattels contained in the box car; and hence in such a case it will not do to say that the crime of larceny, which can only be committed with a felonious intent, possesses no element of the crime of burglary.

As we have already shown, the crime of larceny has always been regarded as so related, associated, and connected with the crime of burglary, committed with the intent to steal, that no court has heretofore undertaken to say that larceny was not, in any manner, associated with the species of burglary as originally charged against the defendant, nor that the two crimes possessed no element in common.

At the expense of repetition, I again say that the defendant was charged in the original' information and called on to answer to the charge of larceny as well as burglary. He was tried for the two crimes, was convicted of larceny, and that conviction was set aside because the information was fatally defective in charging the crime of larceny with burglary;

The second information was filed in less than a year after the said conviction was set aside.

. The last information was • based on the same state of facts as charged illegally in the first information and on which state of facts the defendant was illegally convicted.

In these circumstances, the case is clearly brought within the purpose and the exact language of Act 73 of 1898.

Under the ruling of the court in the instant case and that made in the former ease, the defendant has been discharged from responsibility for the two crimes, one of which a jury has declared that he was guilty.  