The reason why I believe that the State is not obliged to reserve a bill of exceptions in order to appeal from a ruling maintaining a plea of prescription, is that the ruling puts an end to the prosecution and is therefore a final judgment. Article498 of the Code of Criminal Procedure, which is quoted in the prevailing opinion in this case, convinces me that the reserving of a bill of exceptions is not appropriate to a final judgment — putting an end to the prosecution. The article declares: "The bill of exceptions is grounded on the objection made to the ruling of the court on some purely incidental question arisingduring the progress of the cause; and involves the correctness of the conclusions drawn by the court from the facts recited in the bill." [The italics are mine.]
If a plea of prescription is maintained by the ruling of the trial judge, the question of correctness of the ruling is not a purely incidental question arising during the progress of the cause, because the ruling marks the end of the prosecution unless it is reversed on appeal. If a plea of prescription is overruled by the trial judge his ruling is only an interlocutory judgment, from which the defendant cannot appeal. His only recourse is to record his objection by reserving a bill of exceptions, in order to present the question to the appellate *Page 344 court if the final judgment or verdict goes against him. The procedure in that respect is similar to the procedure in a civil case. If a preliminary plea or exception — such as a plea of prescription — is heard and maintained before the case is heard on its merits, the ruling or judgment on the plea or exception puts an end to the suit in the court of original jurisdiction, and is therefore a final judgment, from which the plaintiff may appeal; but if the plea or exception is overruled, the ruling is only an interlocutory judgment, from which the defendant has no right to appeal, — his only recourse being to preface his subsequent pleadings with a protestation, in order to avoid the possibility of seeming to waive the plea or exception, and in order to urge it again on appeal if a final judgment goes against him.
I do not believe that it makes any difference — with regard to the right of the State to appeal without reserving a bill of exceptions — whether the ruling maintaining a special plea and putting an end to the prosecution is founded upon facts shown on the face of the record, or is founded upon testimony taken on the hearing of the special plea. On that subject article 500 of the Code of Criminal Procedure declares: "The bill of exceptions must show the circumstances under which and the evidence upon which the ruling complained of is based; and theaccused is without right to have taken down any evidence except that which is necessary as a basis for his bill; he can not require that any evidence be taken down that appertains to guilt or innocence." [The italics are mine.] *Page 345
I have italicized "the accused" and "his" and "he" because of the strong implication that the lawwriter, in these articles on the subject of bills of exceptions, did not contemplate that the State would have to reserve bills of exceptions.
I concede of course that when the State appeals from a ruling which is based upon the hearing of evidence the record must contain "the evidence upon which the ruling complained of is based", — just as a bill of exceptions reserved by a defendant "must show the circumstances under which and the evidence upon which the ruling complained of is based". But I do not consider it necessary that the State should reserve a bill of exceptions to a final judgment or ruling dismissing the prosecution, for the purpose merely of incorporating in the bill of exceptions "the evidence upon which the ruling complained of is based". It is sufficient if the evidence has been heard in open court on the trial of the special plea and forms a part of the record or transcript of appeal, — as in this case.