State v. Foley

Citations

• 114 La. 412
• 38 So. 402
• 1905 La. LEXIS 479

Syllabus

<p>CRIMINAL LAW — ATJTRB FOIS ACQUIT — FORMER JEOPARDY.</p> <p>1. Where, by reason of the date of an offense, as alleged in the indictment, the prosecution is barred by prescription, so that, quoad the offense charged, there can be no legal conviction, and the defendant, upon his own motion, whether by the trial or the appellate court, is discharged upon that ground, such offense cannot thereafter, and for the purposes of the plea of autre fois convict, be identified by him as being the same as that charged, by information subsequently filed, to have been committed at a later date, the prosecution of which is not so barred.</p> <p>2. But if such identity could be established, the plea of autre fois convict is founded in the law that no one shall be twice put in jeopardy for the same offense, and the law does not consider that one has been put in jeopardy by a prosecution under an insufficient indictment; and it holds, moreover, that when his conviction is set aside, at his instance, on motion for new trial or in arrest of judgment, he thereby waives any objection that he might otherwise urge to. being tried again.</p> <p>3. The plea of autre fois convict, based on a conviction that has been set aside, on motion in arrest of judgment, as illegal, is, on its face, demurrable, and is properly heard and decided by the trial judge, without a jury.</p> <p>4. No appeal lies from the ruling of the trial judge refusing to allow a plea of autre fois convict, demurrable on its face, to be tried by jury.</p> <p>(Syllabus by the Court.)</p>