
    205 La. 340
    STATE v. GEHLBACH.
    No. 37138.
    Supreme Court of Louisiana.
    Nov. 8, 1943.
    Rehearing Denied March 13, 1944.
    
      Edward Rightor, Warren 0. Coleman, and Clarence Dowling, all of New Orleans, for relator.
    Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst. Atty. Gen., and J. Bernard Cocke, Dist. Atty., of New Orleans, for respondents.
   HAMITER, Justice.

In two counts of a bill of information filed on July 10, 1941, the District Attorney for the Parish of Orleans charges defendant with having embezzled during the year 1936, certain funds entrusted to his care and keeping while employed by the Department of Conservation of the State of Louisiana. Another, or the third, count of the information purposes to negative the accruing of prescription, and it recites that the District Attorney “does further give the said court here to understand and be informed that although more than one year has elapsed since the commission of the aforesaid offenses, in manner and form as aforesaid, yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the Judge, District Attorney, or Grand Jury having jurisdiction thereof”.

Defendant attacked the information through a written motion, urging that it shows on its face that the crime alleged lias prescribed. This plea of prescription was overruled; and thereafter defendant successfully invoked the supervisory jurisdiction of this court, thus bringing the case before us for review.

It is provided in Article 8 of our Code of Criminal Procedure that “no person shall be prosecuted, tried or punished for any offense, murder, aggravated rape, aggravated kidnapping, aggravated arson, burglary in the nighttime, burglary in the daytime, armed robbery, and treason excepted, unless the indictment, information, or affidavit for the same be found or filed within one year after the offense shall have been made known to the judge, district attorney or grand jury having jurisdiction, * *

And, according to the well established jurisprudence of this state, an information or indictment, in cases where the crime charged has been committed more than a year before the bill’s filing, is an absolute nullity if it does not contain an allegation negativing prescription. See State v. Oliver, 193 La. 1084, 192 So. 725, and cases therein cited.

In the instant case, as the record shows, several years elapsed between the dates of relator’s (defendant’s) alleged commission of the embezzlement acts and the time when the formal charge was placed against him; and, therefore, it was essential that the prescription of one year be properly negatived in the information. Relator insists that this legal requirement has not been met.

First, relator contends that the district attorney, in count three, “has negatived knowledge on the part of the district attorney, the judge and the grand jury but has failed to negative knowledge on the part of the attorney general who is ‘an officer having the power to direct a public prosecution’ and that, therefore, the district attorney has failed to negative the existence of facts necessary to a suspension of prescription.”

Under this first contention he directs attention to Section 986 of the Revised Statutes of 1870, as last amended by Act 67 of 1926, which reads:

“No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, rape, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one (1) year next after the offense shall have been made known to a public officer having the power to direct a public prosecution. * * * ”

Then he says that the attorney general is a “public officer having the power to direct a public prosecution”, and that the quoted section of the Revised Statutes was not changed or repealed by Article 8 of the Code of Criminal Procedure which relates specifically to knowledge on the part of the judge, district attorney or grand jury having jurisdiction.

This court had occasion to consider both of those provisions in State v. Bussa, 176 La. 87, 145 So. 276, 281. Therein we observed that the Code of Criminal Procedure in no manner changed the prescriptive period of one year established by Section 986 of the Revised Statutes, as amended; and, after quoting from each, the following comment is given:

“Therefore', the only change made in the Code as to prescription is in regard to what allegations the bill must contain to negative prescription.
“Before the adoption of the Code of Criminal Procedure the required allegation was that the offense charged was not known to a public officer having the power to direct a public prosecution, and since its adoption the necessary allegation is that the offense charged was not known ‘to the judge, district attorney or Grand Jury having jurisdiction.’ ”

Relator, however, points out that the Bussa case was decided in 1932, at which time Article 17 of the Code of Criminal Procedure stated:

“Subject to the supervision of the Attorney-General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit. * * * ”

Further he shows that at such time Article 156 of the Code of Criminal Procedure provided:

“Whenever any district judge or district attorney shall be informed that a crime has been committed in his district, and that no complaint or declaration thereof has been made before any committing magistrate, he shall inquire into the fact by causing all persons he shall suppose to have some knowledge of the fact to be summoned before a court of competent jurisdiction, in order that their depositions may be taken.”

Then the argument is advanced that in as much as those laws made it the exclusive province of the district attorney to determine whom, when and how he should prosecute, and they required such official and also the district judge to make inquiry into crimes about which formal complaint had not been made, “the negativing of prescription against the judge, the district attorney and the grand jury constituted the negativing of prescription against every public officer having the power to direct a public prosecution.” But in 1934, he further argues, the Legislature, by Act 24 of the First Extra-ordinary Session of that year, amended Articles 17 and 156 of the Code of Criminal Procedure so as to permit . the attorney general to relieve, supplant and supersede the district attorney in any criminal proceeding, with full power to institute and prosecute criminal proceedings, thus constituting the attorney general the chief public officer having the power to direct prosecutions; and he being such, and having the power of interrupting the running of prescription by the filing of an information, the negativing of prescription as -to him, the attorney general, has since been and is now required.

If it can be said that Act No. 24 of the First Extra-ordinary Session of 1934 was intended by the Legislature to change the law as relator contends, regarding which intent we express no opinion, no such change was actually effected. That statute in the recent case of Kemp, Jr., District Attorney, v. Stanley, Attorney General, 204 La. 110, 15 So.2d 1, was held to be unconstitutional. Therefore, the law now requires, the same as when the Bussa case was decided, the making of an allegation in the information that the offense charged was not known to the judge, district attorney or grand jury having jurisdiction. The attorney general need not be named therein.

The second ground for relator’s insistence that the information fails to negative the running of prescription is that count three thereof uses the clause “yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the judge, district attorney * * instead of alleging in the language of the statute that the information is filed “within one year after the offenses shall have been made known * * And, with reference to this complaint, relator says:

“ * * * The proper language to use in the information is 'that said offense had not been made known to the District Attorney within one year from the filing of this information.’ The District Attorney has chosen to use language other than the language of the statute. If such language is equivalent to the words of the statute, the information is good. If the language used in the information is not equivalent to the language of the statute, then the information is not good. It is beyond dispute that the negativing of prescription in the information is sacramental.” (Italics ours.)

There can be no question, as relator states and as we have shown above, that an information charging a crime committed more than one year before its filing must appropriately negative the one year prescriptive period. This is sacramental; a failure so to do renders the information fatally defective.

Also the law indisputably is that .a criminal statute must be strictly construed and all ambiguities therein are to be interpreted favorably to the accused. That legal principle is firmly imbedded in the jurisprudence of our state; but it has no application to the question presently before us. The statutory provision now being considered — “within one year”' — is unambiguous, and we are merely required to determine, as relator points out, whether the language used in the information is equivalent to it. In other words our duty here is not that of construing the mentioned phrase, “within one year”, found in Article ■8 of the Code of Criminal Procedure, for it has a well-recognized meaning; rather we are to interpret the language of the information and decide whether it equals in significance and import that phrase as it is commonly used and understood.

The preposition “within”, according to Webster’s New International Dictionary, is defined as:

“1. In the inner or interior part of; inside of; not without; as, happiness lies within a man. * * * 2. In the limits ■or compass of; specif,.: a Not farther in length than; as, within five miles, b Not longer in time than; before the end or since the beginning of; as, within an hour, ■c Not exceeding in quantity or degree; as, expenses kept within one’s income. 3. Hence, inside the limits, reach, or influence of; as, within call, hearing, reach, sight; not going outside of; not beyond, overstepping, or the like.”

The phrase “within one year” deals with the element of time. Time is not a static thing. It is, as the poet says, fleeting; it is continuous and moves constantly from one phase to another. It waits for no man. If a person is required to perform an act within a given year, and he does it before the end of that period, even on the last fractional second thereof no matter how small, his efforts are timely. If, on the other hand, the last instant of the year is allowed to pass without performance but he acts on the very next infinitesimal fraction of a second, he performs untimely; he is then in a new period, not within but without the given one, and more than the year has elapsed. The act must be done either within the year or without the year; there is and can be no intermediate point.

The following illustration, although not dealing with the element of time, is appropriate. If a physician states to a patient that the cost of an operation will be “within $200”, and, following a performing of the services, a ' statement is rendered for exactly $200, that charge is “within $200”. Or if he says that the cost will be “not more than $200”, a charge of $200 is still within the $200. At the exact point of $200 the cost is neither less than nor more than $200; yet it is within that amount.

Similarly, as to the time element, the last moment of the prescription of one year is within the prescriptive period. But on the passage of such moment it is incorrect to use the phrase "within such period”; neither can it be correctly said that “more than one year has not elapsed”, because more than a year has elapsed.

The expression “more than one year has not elapsed since”, as used in the information 'under consideration, means the same as “not more than one year has elapsed since”, or “not longer than one year has elapsed since”, or “before the end of one year”. Hence, such expression, tested by the above quoted definition of the preposition “within”, is equivalent to the phrase “within one year since”. Any other construction would be strained and unreal..

In the brief of relator’s counsel we find the following:

“The District Attorney has been pleased to say that the second year had not begun when knowledge was brought to him. He has not said that the first year had not • ended. Certainly knowledge can be brought to you within the year without more than the year elapsing. The first second of the second year would have been the first period of time for the expression ‘more than one year’ to be properly used. The last second of the first year would have been the period of time for the expression ‘within the year" to be used. As ‘within one year’ has one meaning and ‘more than one year’ another meaning, the two phrases differ and the use of the second phrase does not comply with the sacramental requirements of the statute. * * *.”

We agree thoroughly with the proposition that the last second of a given year falls within such year, and that on the occurrence of the succeeding second more than the year has elapsed. Further, we agree that there is a vast difference in meaning between the phrases “within one year” and “more than one year”. But, in making the quoted argument, relator’s counsel ignores the all important negative, the word “not”, which the information filed against this defendant contains. A statement that “more than one year has elapsed” is quite unlike an allegation that “more than one year has not elapsed”. The district attorney employed this last-mentioned language.

There are numerous decisions in the jurisprudence of this state dealing with Section 986 of the Revised Statutes of 1870, as amended, and Article 8 of the Code of Criminal Procedure, many of which are cited and quoted from in the brief of relator’s counsel; but in none did there arise the matter of interpreting the clause of an information or indictment similar to the one before us. Most of them treated with the necessity of negativing the one-year prescription, a well-recognized general principle of law to which we above direct attention.

Only one of those cited cases, because of the inappropriate language therein used, is deserving of special comment here, it being that of State v. Hoffman, 120 La. 949, 45 So. 951, 952. In it the following was said:

“The information was filed more than one year after the bank had closed its doors; hence, in order to show that the defendant was liable to prosecution, it became necessary to allege that an indictment had been found and that it had not been set aside until within less than a year before the filing of the information; and an allegation to that effect was accordingly made in the information. * * * ” (Italics ours.)

The word “less” was erroneously used therein by the court, as Section 986 of the Revised Statutes, which was being considered, employed the phrase “within one year” and not “within less than a year”. Furthermore, the sufficiency of the indictment was not being tested; instead the court was only required to pass upon the admissibility of certain evidence offered by the state in proof of the indictment’s allegations.

The district court’s overruling of the plea of prescription is correct; and, for the reasons above assigned, the writs heretofore granted are recalled and the relief requested by relator is denied.

HIGGINS, FOURNET, and PONDER, JJ., dissent.

HIGGINS, Justice

(dissenting).

On July .10, 1941, the district attorney for the Parish of Orleans filed a bill of information against the accused alleging, in two counts, that he had committed the offense of embezzlement óf the sum of $566.03 on September 16, 1936, and the sum of $199.96 on December 3, 1936. As it appeared on the face of the information that the alleged crime was prescribed by prescription of one year, the third count of the information negatived prescription by stating that the district attorney “does further give the said Court here to understand and be informed that although more than one year has elapsed since the conv-mission of the aforesaid offenses, in the manner and form as aforesaid, yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the Judge, District Attorney or Grand Jury having pirisdiction thereof, * * (Italics for emphasis.)

The defendant filed a plea of prescription contending that the information was fatally defective because the district attorney had not negatived prescription of one year from the date the aforesaid offenses were made known to the judge, district attorney or grand jury having jurisdiction thereof. The trial judge overruled the defendant’s plea and he applied to this court, under its supervisory jurisdiction, for writs of certiorari, mandamus and prohibition. The writs were granted and on the return day the matter was submitted on the record and briefs.

The issue presented must be determined by the proper interpretation to be placed upon Count 3 of the bill of information and the pertinent parts of Article 8 of the Code of Criminal Procedure, enacted in 1928 (as amended by Act 147 of 1942 and Act 323 of 1942, which are identical as far as this case is concerned), reading as follows:

“Art. 8. No person shall he prosecuted, tried or punished for any offense, murder, aggravated rape, aggravated kidnapping, aggravated arson, burglary in the nighttime, burglary in the daytime, armed robbery, and treason excepted, unless the indictment, information, or affidavit for the same he found or 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 an indictment found, or an information filed, or an affidavit filed where prosecution may be by affidavit, before the above prescription has accrued, shall have the effect of interrupting such prescription; * * (Italics for emphasis.)

The law is clear and well-established that where it appears from the face of an indictment or information that the offense was committed one year before it was filed, the indictment or information is fatally defective unless there is a proper al-’egation contained therein negativing prescription of one year by stating that it was filed “within one year after the offense was made known to the judge, district attorney or grand jury having jurisdiction [thereof].” Art. 8, Code of Criminal Procedure as amended; State v. Guillot, 200 La. 935, 9 So.2d 235, 242; State v. Oliver et al., 193 La. 1084, 192 So. 725; State v. McNeal, 159 La. 386, 105 So. 381; State v. Drummond, 132 La. 749, 61 So. 778; State v. Hoffman, 120 La. 949, 45 So. 951; State v. Conega, 121 La. 522, 46 So. 614; State v. Foley, 113 La. 206, 36 So. 940; State v. West, 105 La. 639, 30 So. 119; State v. Hinton, 49 La.Ann. 1354, 22 So. 617; State v. Pierre, 49 La.Ann. 1159, 22 So. 373; State v. Wren et al., 48 La. Ann. 803, 19 So. 745; State v. Davis, 44 La.Ann. 972, 11 So. 580; State v. Joseph, 40 La.Ann. 5, 3 So. 405.

There is no doubt that Article 8 of the Code of Criminal Procedure, as amended, is a statute of repose and that its provisions must be liberally construed in favor .of the accused and strictly interpreted against the prosecution.

In 22 C.J.S., Criminal Law, § 224, page 351, we find:

“In most jurisdictions there are statutes limiting the time within which prosecutions for crime may be commenced, and the validity of such statutes has been sustained. Such statutes, broadly speaking, are to be construed liberally in favor of accused and against the prosecution. •jf t- * ’>

And in the footnotes on the same page under “Reasons for Rule”, it is stated:

“The statute of limitations is not a process to be applied strictly and grudgingly, but must be liberally construed, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition by the legislature of the fact that time gradually wears out proofs of innocence, and a notification that a fixed and positive period established by it destroys all proofs of guilt.”

In State v. Bradley, 144 La. 459-462, 80 So. 657, 658, it was said:

' “ * * * we have to take the law as we find it, and have due respect for all of the safeguards which the law gives to the defendant in a prosecution for crime.”

It is the universal and cardinal rule of construction that penal statutes must be strictly construed and it is elementary that in criminal cases the law is strictly interpreted in favor of the accused and against the State. State v. De Generes, 194 La. 574, 194 So. 24; State v. Clement et al., 194 La. 395, 193 So. 685; State v. Whitlock et al., 193 La. 1044, 192 So. 697; State v. Reed, 188 La. 402, 177 So. 252; State ex rel. Panville v. Butler et al., 181 La. 622, 160 So. 99; State v. Hebert et al., 179 La. 190, 153 So. 688; State v. Williams, 173 La. 1, 136 So. 68; Cendon v. H. G. Hill Stores et al., 171 La. 341, 131 So. 41; State v. Terrill, 169 La. 144, 124 So. 673; State v. Brunson, 162 La. 902, 111 So. 321, 50 A. L.R. 1531; Liquidators of Langermann, 156 La. 76, 100 So. 55; Canal Commercial T. & S. Bank v. Employers’ L. A. Corp., 155 La. 720, 99 So. 542; State v. Dean, 154 La. 671, 98 So. 82; State v. Sloan, 139 La. 881, 72 So. 428; 22 C.J.S., Criminal Law, § 21, page 69.

The relevant language of Article 8 of the Code of Criminal Procedure, as amended, is identical with the provisions of the earlier statutes of this State. Rev. Stats. Sec. 986; Act SO of 1894; Act 73 of 1898 and Act 67 of 1926. This court, in considering the above-referred to provisions, has repeatedly held that the prescriptive period is exactly one year.

In the case of State v. McNeal, 1925, 159 La. 386, 105 So. 381, 382, the Court said:

“The indictment charges the crime to have been committed by the accused on October 15, 1923. It was returned into open court by the grand jury and filed on January 23, 1925, more than a year from the time the crime is alleged to have been committed. There is no allegation or statement in the indictment to negative the fact that the crime had been prescribed when the indictment was found, such as, for instance, that the offense had not been made known to any officer of the law having power or authority to direct a prosecution until zvithin the year prior to the indictment. * * *"

In State v. Richard, 1921, 149 La. 568, 89 So. 697, 699, the Court held:

“When, therefore, the state undertakes to prosecute under an indictment which charges an offense committed more than a year prior to its finding, it proceeds in violation of a prohibitory law, unless it makes allegation that the offense was not made known, zvithin the year; to any public officer having the power to direct the investigation or prosecution; * *

In the concurring opinion of the foregoing case, 149 La. on page 579, 89 So. on page 701, we find:

“The reason why an indictment fo‡ an offense alleged to have been committed a year or longer before the indictment is fozmd must contain the allegation that the commission of the offense was not made known to an officer authorized to prosecute a year or longer before the indictment zvas fotmd is that that allegation is necessary to show a legal right to proceed with the prosecution or trial.”

In State v. Perkins, 1935, 181 La. 997, at page 1003, 160 So. 789, at page 791, the Court said:

“To say the least, the information that was in the possession of the district attorney was sufficient to place him on notice that defendant had committed the crime of bigamy, and to suggest that a prompt and full inquiry be had as to the facts. There is no reason to suppose, in the exercise of due diligence, he could not have discovered within the year prescribed by the codal article [Art. 8, Code of Criminal Procedure] that, as it subsequently developed, defendant’s first wife was living un-divorced from defendant at the time he contracted his second marriage.” (Brackets ours.)

In State v. Bischoff, 1919-1920, 146 La. 748, 84 So. 41, 47, it was stated:

“This leaves the only remaining question to be considered, and that is whether or not the state was required to make proof of the fact as alleged in the bill of information that the commission of the offense had not been brought to the attention of an officer authorized to prosecute zvithin the time during which prescription would have otherwise run.
“ * * * The law does not say merely that the offense shall be prescribed, but that 'no person shall be prosecuted, tried or punished, * * * ’ indicating that, if it be brought to the attention of the court at any time, from the initiation of the criminal proceedings to the end of the punishment, that the charge was not preferred zvithin the period provided by the statute, the proceeding should be abated; * *

In State v. Rhodes, 1920, 150 La. 1064, 91 So. 512, 514, the Court said:

“ * * * It is not disputed that the accusation was made known to the officers authorized to direct a prosecution when the affidavit was filed in the First city criminal court. State v. Gonsoulin, 38 La. Ann. 459. Our conclusion is that their authority to prosecute was barred by prescription one year thereof ter.”

In State v. Cooley et al., 1933, 176 La. 448, 146 So. 19, 22, it was stated:

"The prescription, prescribed by article 8, Code Cr.Proc., begins to nm from the date knowledge of the crime is made known to the pidge, district attorney, or grand jury having jurisdiction, and it is not affected by the nonaction of the official or official body authorized to prosecute, no matter what the official’s reason may be for his or their nonaction.”

In State v. Wren et al., 1896, 48 La. Ann. 803, 19 So. 745, the Court said:

“In the case of State v. Hanks, 38 La. Ann. [468] 469, the language employed in Sec. 986 Rev.St., was interpreted to mean that ‘no person shall be prosecuted for an offence unless indicted within a year after it was denounced, to the public officer.1 11

In State v. Hoffman, 1908, 120 La. 949, 45 So. 951, 952, it was stated:

“Question having arisen as to the regularity of the impaneling of the grand jury, the district attorney nolle prosequied the indictment, and renewed the same charge in an information.
* * * * *
“The information was filed more than one year after the bank had closed its doors; hence, in order to show that the defendant was liable to prosecution, it became necessary to allege that an indictment had been found and that it had not been set aside until within less than a year before the filing of the information; and an allegation to that effect was accordingly made in the information.” (All italics for emphasis.)

See, also, State v. Cheatham et al., 1933, 178 La. 366, 151 So. 623.

In the light of the foregoing undisputed jurisprudence, we return now to a consideration of the wording of the pertinent parts of Article 8 of the Code of Criminal Procedure, as amended, and Count 3 of the information, above quoted. The second part of the article leaves no doubt that where the crime is known by the proper officer, the only way the State can legally interrupt the running of the prescription of one year is to file an indictment or information against the accused “before the above prescription has accrued.11 The authorities which we have already cited show clearly that the prescription accrues when one year has elapsed and at that very moment the State’s authority to proceed against the accused is lost and barred, because it is expressly stated that “no person shall be prosecuted, tried or punished for any offense * * * unless the indictment, information, or affidavit for the same be found or filed within one year after the offense shall have been made known to the judge, district attorney or grand jury having jurisdiction [thereof].” (Emphasis ours.)

In Webster’s New International Dictionary, Second Edition, the word “within” in relation to time, is defined to mean: “(b) not longer in time than; before the end or since the beginning of; as, within an hour.” “Before” is defined as meaning “Preceding in time; earlier than; previously to.”

In Words and Phrases, vol. 45, Permanent Edition, at page 378, we find: “Word ‘within,’ when used relative to time, has been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than.”

The reason why the members of the Legislature were careful to use the words “within” and “before” in the Codal Article was because they realized that at the exact moment one year elapsed or expired, prescription tolled or accrued in favor of the accused protecting him against being prosecuted, tried or 'punished for the offense. They knew it was impossible for the State at that same moment to have the conflicting right to file a bill of information or indictment which would start the prosecution because at that very time the prescriptive period elapsed and became legally effective in favor of the accused. In fine, those two conflicting rights could not exist simultaneously or at the same time because each is completely destructive of the other. Therefore, the State has to file the bill of information or indictment against the accused “within one year” after the offense has been made known to the judge, district attorney or grand jujy having jurisdiction or “before the above prescription has accrued” in order to interrupt prescription of one year.

It is also significant that in both Act 147 of 1942 and Act 323 of 1942, amending Article 8 of the Code of Criminal Procedure, in granting repose to an accused against whom an information and indictment has been filed, but who has not been tried, the Legislature, in providing a prescriptive period, said:

“ ‘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 mandatory 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 entered the same as if entered by the District Attorney,’ Provided that if at any time during said three or two year periods, respectively, the offender is a fugitive from justice, such prescriptive period shall be suspended and shall recommence to run.only from the date said offender is captured or surrenders.” (Italics mine.)

It will be noted that in the above-quoted part of the Article, the Legislature did not use the words “before” or “within” in providing the three-year prescriptive period but clearly stated that the defendant was entitled to a nolle prosequi when three years had elapsed from the date of the finding of an indictment or the filing of a bill of information. Since the Legislature did use the words “before” and “within” with reference to the one-year prescriptive period also provided for in Article 8 of the Code of Criminal Procedure, as amended, and did not employ those words with reference to the three-year prescriptive period, it is obvious that the members of the Legislature deliberately used them because they recognized that a different meaning would thereby be conveyed.

Did the State by alleging in Count 3 of the information “yet more than one year has not elapsed since the commission of the-aforesaid offenses was made known to the Judge, District Attorney, or Grand Jury having jurisdiction thereof * * *” negative, as it was required to do, that one-year prescription had tolled or accrued? The answer to this question depends on what is meant by the above phrase. Can it be said “yet more than one year has not elapsed” is synonymous with and equivalent to saying that the information was filed “within one year” after the offenses were made known to the district attorney, the judge or grand jury, or before the above prescription accrued? “More than one year” certainly means a period of time in excess of, greater or longer than exactly one year.' It is a period of time of one year plus an additional amount of time. It is not alleged that one year has not elapsed but that “more than one year has not elapsed”. It has been demonstrated above that the offenses in question are prescribed by exactly one year. This cannot be construed to mean more than one year. Consequently, it cannot be said that the State has negatived that one year has elapsed since the offense was made known to the proper officers named in the Article. For this court to hold that the allegation “yet more than one year has not elapsed” is proper and legal, would be for all practical purposes extending the prescriptive period beyond the time of one year exactly. This would be legislating and also would be contrary to the holding of the numerous authorities above cited that a liberal construction in favor of the accused and a strict interpretation against the State must be placed upon the statute.

It is difficult to see how, even with a broad construction in favor of the State, one could arrive at the conclusion that “more than one year” is equivalent to one year exactly, or “within” a year, or “before” a year. “Within” a year or “before” a year means during a year, in the time of a year, throughout the continuance or course of a year and cannot by any possible stretch of the imagination be made to mean more than a year, longer than a year, beyond a year, or without a year.

“Within one year” means within the limits of and during the year. What was not alleged in the information is that one year has not elapsed since the commission of the said offenses was made known to the judge, district attorney or grand jury. The State elected to use the words more than one year has not elapsed instead of the words of the statute or their equivalent, and this choice is fatal and is a bar to any further prosecution of the defendant in this case.

The prescriptive period provided by the Legislature is an exact and definite period of time, one year, and not one moment more or longer or greater. The State had to act before or within a year in order to prevent prescription accruing in favor of the defendant. It failed to do so and this court is powerless to extend that period of time one moment beyond the expiration of one year.

This court has recognized the limitation on its authority to extend the period of prescription fixed by the Legislature, even in a civil case. In State ex rel. Dunshie v. Fields et al., 164 La. 954, 115 So. 45, 47, the relator filed his notice of intention to become a candidate beyond the twenty-day period allowed him by Section 13 of Act 97 of 1922 but within the time granted him by the Executive Committee’s resolution. In affirming the district court’s judgment, this Court stated:

“Since relator did not file his notification within the 20-day period provided by statute, the trial court correctly rejected his demand.”

For these reasons, I respectfully dissent.

FOURNET, Justice

(dissenting).

The defendant was charged on July 10, 1941, in the first two counts of a bill of information, with having embezzled certain funds of the Department of Conservation of the State of Louisiana during the year 1936. In the third count it is declared: “ * * * although more than one year has elapsed since the commission of the * * * offenses, * * * yet more than one year has not elapsed since the commission of the * * * offenses was made known to the Judge, District Attorney or Grand Jury having jurisdiction thereof * * *."

It is elementary that the only crimes known to law in this state are statutory. The legislature, by its adoption of Article 8 of the Criminal Code, as amended by Acts Nos. 147 of 1942 and 323 of 1942, has designated the time within which the prosecution of these crimes (excepting those specifically named in the article) must be begun, that is, within a year after the offense is committed or knowledge thereof is conveyed to the proper authorities. And under the jurisprudence of this state the failure to properly negative prescription under this article is fatal to the indictment or information.

I agree with the conclusion in the majority opinion that the statute under consideration here is unambiguous. It is to be noted that in the first paragraph of Section 8, as amended, it is specifically declared that “no person shall be prosecuted * * * for any offense * * * unless the indictment [or] information * * * for the same be found or filed within one yea»' after the offense shall have been made known to the judge * * *,” and in the second paragraph of this same article there is the proviso “that in all criminal prosecutions an indictment found, or an information filed * * * before the above prescription has accrued, shall have the effect of interrupting such prescription.” •Thus it may be seen that the lawmakers, in clear and unambiguous language, have declared that the indictment must be found or information filed “within a year” and if not so found or filed before that'time to interrupt the running of the prescription, no person can be charged with, tried for, or convicted of the offense.

The majority opinion is based primarily, if not entirely, upon the broad definition of the preposition “within” found in Webster’s New International Dictionary. In my opinion therein lies the fallacy of the majority opinion for it is elementary that a penal statute must be strictly construed, all doubts being resolved in favor of the accused and against the state. The broad and liberal construction given Article 8 in the majority opinion is not only in direct violation of the universal and cardinal rule of construction just referred to, but it also does violence to the spirit as well as the letter of the law.

Furthermore, I believe that since we are dealing with an element of time in this case, the specific example given in the definition quoted in the majority opinion, i. e., “before the end or since the beginning of; as within an hour,” or, to paraphrase the time element here, “as within a year,” is very appropriate. To construe the phrase “no more than a year” as being equivalent to the phrase “before the end or since the beginning of” a year is not only giving the same a very broad construction, but, in my opinion a somewhat strained one.

I, therefore, respectfully dissent from the majority opinion.  