(dissenting).
I cannot subscribe to the majority view that the case of State v. Bradford, 219 La. 1090, 55 So.2d 255 (on rehearing), is not controlling here, and that the mere filing of a motion for a bill of particulars in itself interrupts . the tolling of prescription provided in LSA-Revised Statute 15 :8, declaring :
“In felony cases when three years elapse from the date of finding an indictment, or filing an information * * it shall be the 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 to be entered the same as if entered by the district attorney.” Then, there is the further provision:
“Nothing in this article shall apply or extend to an accused person * * who has escaped trial through'dilatory pleas, or continuances obtained by him or in his behalf.”
While it is true that when the Bradford "case, supra, was originally appealed here, on rehearing, this. Court compared a motion for a bill, of particulars to a plea of vagueness in a civil suit, -and we did state in the .course of the opinion- that a bill of particulars was such a dilatory plea that was intended under Article VIII of the Louisiana Code of Criminal Law and Procedure, LSA-R.S. 15:8; however, when we found it impossible to decide the case on the record as made up, which included this motion for a bill of particulars, and remanded the case to ascertain who was at fault for the delay in the prosecution, I think it was for the obvious purpose of ascertaining whether the accused “has escaped trial through dilatory pleas”- — that is, whether his motion for a bill of particulars had been the' cause of his failure to have been timely brought to trial. If there was any doubt in this because of lack of direct expression in the opinion itself, I think that when the case came back here on the application of the defendant on writs to review the judgment of the District Court overruling the plea of prescription, in reversing the ruling of the trial court and maintaining the plea of prescription, we made it abundantly clear by the observation [219 La. 1090, 55 So.2d 256]:
“ * * * Our opinion, remanding the case, was evidently misunderstood. If we had thought that the pendency of the motion was sufficient to interrupt prescription, there would have been no occasion to remand the case to determine the cause of delay or why the motion had not been timely disposed of.”
*977To- hold that the accused in the instant case “has escaped trial through dilatory pleas” is a conclusion without basis in fact or in law. In my opinion, the learned Trial Judge, who tried the case below on the plea of prescription, obviously concluded, and I think correctly so, that the defendant did not “escape trial through dilatory pleas”, but rather because of the total lack of any move on the part of the State to bring this case to trial at any stage of the proceedings.
Nor can I subscribe to the view expressed by the majority as to the holding of this Court in State v. Bradley, 227 La. 421, 79 So.2d 561, 564. Obviously, my learned Colleague (the author of the majority view) misunderstood that case. A mere reading of that opinion will readily show the correctness of my appreciation of the holding of this Court in the two Bradford cases, supra.
In the Bradley case, the Court (with Mr. Justice Hawthorne as organ of the Court), in a well-considered and scholarly opinion, very aptly observed that there was no conflict between the provisions of Articles 8 and 9; that they could not be read together ; nor could Article 9 be viewed as merely the procedural vehicle for applying Article 8. The Court stated:
“ * * * On the contrary, we are of the opinion that these two articles were drawn up to take care of two different situations. Article 8 obviously deals with a three-year period following the filing of a bill of information, whereas Article 9 just as obviously deals with a three-year period following a prosecutive step by the State. * * * ”
And, we squarely held:
“ * * * the only question presented by this appeal is whether the trial judge abused his discretion by causing a nolle prosequi to be entered. * * * ”
In that case, as in the case at bar, three years had passed since the informatiop had been filed against the defendants. Hence, the Court held that Article 8 was controlling in finding that there was nothing in the record to show that the trial judge had abused his discretion in sustaining the plea of prescription, despite the fact that the defendants had been arraigned within the three-year period and, unlike the case at bar, their plea of “Not Guilty” had not been withdrawn.
I respectfully dissent.