If the first indictment against the defendant had been merely an indictment for the crime of entering a house in the nighttime without breaking, which is the crime defined in Section 854 of the Revised Statutes, the indictment would not have interrupted *Page 86 the prescription which would bar a prosecution for the capital crime of burglary. That crime is defined in Section 850 as the breaking and entering of a dwelling house in the nighttime, while armed with a dangerous weapon, and with intent to commit a crime, et cetera. But the first indictment against the defendant was intended to be and was in fact an indictment for the capital crime of burglary. The indictment contained every allegation essential to a valid indictment for the capital crime, except that the word "break" was omitted. For that reason the indictment was held to be an invalid indictment for the capital crime. But article 8 of the Code of Criminal Procedure, virtually, declares that an invalid indictment may interrupt prescription against the right of the State to prosecute, because the article declares that, if an indictment be quashed, annulled or set aside, the prescription shall begin from the time of the quashing, annulling or setting aside of the indictment. That means that, even though an indictment is defective or invalid, and is for that reason quashed, annulled or set aside, it has the effect of interrupting prescription until it is quashed, annulled or set aside.
The defendant's plea that he should not have been put in jeopardy of his life or liberty twice for the same offense is not well founded, because the guaranty in the Bill of Rights (in Section 9 of Article I of the Constitution of Louisiana) against the putting of a person's life or liberty in jeopardy twice for the same offense is qualified by the exception, "except on his *Page 87 own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained." On the previous conviction of the defendant in this case, a motion in arrest of judgment was sustained by the decree of this court. It may be conceded, for the sake of argument, that the defendant might have been tried and convicted legally of the crime of burglary defined in Section 854 of the Revised Statutes, under the indictment which this court held was not a valid indictment for the capital crime of burglary, defined in Section 850 of the Revised Statutes. But the defendant was not tried merely for the less serious crime, defined in Section 854. He was tried for the capital crime defined in Section 850, and was convicted of that crime, under an invalid indictment. After he was tried and convicted the first time, he did not take the verdict to be a valid conviction for the less serious crime of burglary, defined in Section 854 of the Revised Statutes. He insisted that the conviction was illegal because of his having been tried under the invalid indictment for the capital crime of burglary defined in Section 850. His being put in jeopardy of life or liberty twice for the same offense, therefore, comes within the exception stated in the Bill of Rights.
My opinion is that the defendant had the right to submit his plea of prescription to the jury after the plea was overruled by the judge. In the case of State v. Hayes, 162 La. 917, 922,111 So. 327, it was held that a defendant had the right to submit a plea of prescription to the jury after the plea was overruled by the judge. To *Page 88 the same effect, see 8 R.C.L. 134, § 113. I concur, however, in the ruling that there is no merit in the defendant's Bill of Exceptions No. 3, complaining that he was not allowed to submit the plea of prescription to the jury, because, as a matter of fact, the judge did not deny the defendant his right to submit the plea of prescription to the jury. The defendant's attorney merely complained to the judge that his overruling of the plea of prescription prevented its being submitted to the jury. But the judge did not refuse to allow the plea to be submitted to the jury after he overruled it. As far as the record shows, the plea of prescription was submitted to the jury under the general issue. That is recognized in the declaration in the prevailing opinion that it was incumbent upon the State to prove beyond a reasonable doubt that the crime charged in the indictment was not prescribed, and that, for that purpose, the State offered and filed in evidence a certified copy of the original indictment, et cetera. When a plea of prescription in a criminal case is submitted to the judge, before a trial of the case on its merits, the burden of proof is on the defendant to show, by a preponderance of evidence, that the prosecution is barred by prescription. It was so held in State v. Posey, 157 La. 55,101 So. 869, where the court expressly overruled two recent decisions and reinstated several previous decisions.
I do not subscribe to what is said in the prevailing opinion in this case on the subject of the admissibility of evidence of previous threats on the part of the victim *Page 89 of a homicide, or of a physical attack. I adhere to the opinion, which I have expressed many times, that the question as to who was the aggressor in a fatal difficulty, in a case where the defendant on trial pleads self defense, is a question of fact on which depends the guilt or innocence of the person on trial, and is therefore a question for the jury to decide from all of the evidence in the case. That proposition seems to me so self-evident that my faith in it has not been shaken by the many decisions to the contrary, cited in the prevailing opinion in this case. The subject is discussed in the prevailing opinion by way of illustration only, and is otherwise not at all relevant to any issue in this case.