(concurring in part and dissenting in part).
On April 6, 1955, the accused, John Truett — who had been charged in a bill of information filed August 9, 19.51,' with violation of B.S. 40:962, a felony, and more than three years having 'elapsed from that date without his having been *979tried — invoked the statute of limitations provided in R.S. 15:8 and 15:9, praying that the information be dismissed and that the court order the district attorney to enter a nolle prosequi therein. The trial judge, after formal hearing, so ordered, and the state prosecutes this appeal from such action.
In brief the state correctly points out that in felony cases the statute of limitations provided in these articles runs in favor of a defendant in either of two situations: (1) “Where three years have elapsed between the date of trial and the filing of the bill of information, except where the accused has escaped trial through 'dilatory pleas," under Paragraphs 3 and 4 of R.S. 15.-8,1 and (2) “Where three years have elapsed between the date of trial and the last prosecutive step by the state,” under R.S. 15:9. (Emphasis supplied by me.)
Inasmuch as the accused was arraigned on April 30, 1952, and the plea to have the prosecution dismissed was filed on April 6, 1955, less than three years later, I concur in the holding of the majority that the provisions of R.S. 15:9 do not apply in- the instant case. See, State v. Bradley, 227 La. 421, 79 So.2d 561.
However, I cannot agree with the majority holding that the mere filing of the pleas in this case by the accused on May 19, 1952, and particularly the motion for a bill of particulars, had the effect of interrupting the “running of prescription” under the provisions of R.S. 15:8, or that the accused, as a matter of fact, escaped trial because he filed such pleas, a factual issue that is neither discussed nor. even mentioned in the majority opinion, and, above all, is not supported by the evidence. Nor does the holding of this court in State v. Bradford, 217 La. 32, 45 So.2d 897, on rehearing, support this conclusion.
It is my'humble opinion that there is no language in 15:8 that warrants the conclusion the filing of a dilatory plea interrupts the three-year period of limitation therein provided.2 On the contrary, this section, in most clear and positive language, makes it the mandatory duty of the district attorney to enter a nolle prosequi “when three years elapse from the date of finding *981an indictment, or filing an information,” and “the accused has not been tried”. And in equally clear and positive language it is provided that "nothing in this article shall apply or extend to an accused person who has absconded, or who is a fugitive from justice or who has escaped trial through dilatory pleas, or continuances obtained by him or in his behalf.” In other 'words, the charge must be nolle prossed, either by the district attorney or through court order if, during three years following the date of the charge, the accused has not been tried, unless it affirmatively appears from the record that he has escaped trial because he (1) was an absconder, (2) was a fugitive from justice, or (3) delayed and impeded his trial through dilatory pleas and continuances. (The emphasis has been supplied by me.)
In the Bradford case [217 La. 32, 45 So. 2d 898] the state, contended (1) the accused ‘‘escaped trial through dilatory pleas and continuances obtained by him or in his behalf;” and (2) “waived his right to a speedy public trial by not demanding” one. The trial judge, in his per curiam to the bill reserved when he overruled the accused’s plea based on R.S. 15:8, stated that “the motion for a bill of particulars had interrupted prescription, so that the subsequent plea of three years’ prescription could not be sustained.” When the case was originally before us on appeal, however, we reversed his action and held (1) a motion for a bill of particulars in a criminal case “could not be termed as dilatory by its nature,” (2) failure of the accused to assert his right to a speedy trial did not relieve the state from its obligation of proceeding, and (3) that the failure to act for whatever reason by a court, a district attorney, or both, should not be resolved as a matter of omission and fault of a defendant. We accordingly sustained the plea and ordered the charge against Bradford nolle prossed. (The emphasis has been supplied by -me.)
On rehearing, we concluded that a “motion for a bill of particulars was such a dilatory plea as was intended under Article 8 of the Code of Criminal Law and Procedure”, and, without otherwise disturbing our previous holding, stated that "To ' this extent, it will be necessary to reverse the judgment rendered in the original hearing. Hoivever, under the situation that is presented in this case, we find it impossible to render a final decision at this time.” We accordingly remanded the case to have the trial judge determine the cause of the delay in the prosecution. (The emphasis has been supplied by me.)
In other words, we did not hold that the mere filing of a motion for a bill of particulars interrupted prescription. We only held that a motion for a bill of particulars is a dilatory plea, and indicated that if this dilatory plea had been employed by the accused as a vehicle or manoeuvre through *983which he had escaped trial, then R.S. 15 :8 neither applied nor extended to him. And in order to determine whether he had, in fact escaped trial through this means, we sent the case back to the lower court for the introduction of further evidence on this phase of the matter.
On remand, the trial judge found as a fact that the failure to bring the accused to trial within the three-year period was “the refusal of the officer in charge of the prosecution to present its opposition to the motion and by the statement of this officer to the effect that the defendant would not be prosecuted under the charge.” Nevertheless, the trial judge, as has the majority here, misconstrued our holding on rehearing and again overruled the accused’s plea. In correcting this misconstruction after the case was brought to us for the second time, we stated: “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 the delay or why the motion had not been timely disposed of.” See, State v. Bradford, 219 La. 1090, 55 So.2d 255, 256. (The emphasis has been supplied by me.)
It is eminently obvious to even a casual reader that this statement was not only a direct denial of the contention that we had held on rehearing the mere filing of a motion for’ a bill of particulars had the effect of ^interrupting the running of prescription, but also that this statement was the- sole basis for our final conclusion that Bradford had not escaped trial through dilatory pleas, and that the charge against him must be ordered nolle prossed.
In other words, we ultimately concluded that the failure of the accused to be tried during the three-year period was not caused by the filing of the motion, but by the refusal of the officer in charge to prosecute the case because “of a better case the prosecution had against the defendant in another division of the court.” In fact, we specifically recognized the right of the accused to file such pleas, for when the case was before us on rehearing, we reversed the holding of the trial judge that the filing of the motion for the bill of particulars had interrupted prescription, stating : “The State is interested in seeing that an accused be made to stand trial for an offense with which he is charged, and the accused, on the other hand, is entitled to preserve every legitimate right of defense he may have." One of the most fundamental and basic of these rights is that he be furnished with whatever information may be necessary in order that he may properly defend himself, and it is certainly illogical to say that his mere request for such information — which will permit him to safely go to trial — can, in itself, have the ef,fect of preventing him from going to trial or being tried. Actually, this step taken by him. was a step toward having the mat*985ter speedily disposed of, and the reason why it was not speedily disposed of was not his request, but the failure of the prosecution to comply with his request by furnishing the information, or, through formal court procedure, to enter any opposition to his request.
In the instant case, as in the Bradford case, the state showed no intention or desire to present “its opposition” to the motion for the bill of particulars, or to have that motion adjudicated upon by the trial judge. A reading of the record leaves the inescapable conclusion, as in the Bradford case, -that the state abandoned the case and never intended to prosecute it, for the evidence discloses that the accused was charged in two affidavits filed July 20, 1951, with having in his possession, in violation of R.S. 40:962, narcotics and paraphernalia at 2622 Canal Street. Acting on these affidavits, the district attorney filed two bills of information against him on August 9, 1951, the one in the instant case being allotted to Section “B” of the court, the other to Section “F.” He was arraigned in the instant case on April 30, 1952, and on May 19, 1952, within a month, filed his motion for a preliminary hearing, for a bill of particulars, and his plea to the court’s jurisdiction. Similar pleadings were filed in the case pending in Section “F,” and while the district attorney did, with reasonable promptness, furnish the bill of particulars there requested, fix for trial and disposition the other motions, set the case for trial on the merits, and prosecute the case through an involved and lengthy trial, which resulted in cm acquittal on the charge, he took absolutely no step whatever in the case in Section “B.” He neither furnished the requested bill of particulars, opposed it, opposed the plea to the jurisdiction and the motion for the preliminary hearing, or set them for trial. He did absolutely nothing to bring the case to trial on any phase of the pleadings or to submit them to the judge for determination.
It is inconceivable to me that, in the face of the positive provisions of R.S. 15:8, anyone could read this record and come to the conclusion the accused here escaped trial through the filing of these pleadings. Certainly the trial judge,' who had complete supervision of the case, is in a better position than we are to determine and know just why this particular case was not prosecuted, and why the accused was not, within the three-year period, tried thereon as actively, as vigorously, and with as much dispatch as had been shown in the companion case in Section “F.” In his per curiam to the bill reserved by the state when the accused’s plea was sustained and the charge against him ordered nolle prossed under our holding in the Bradford case, the trial judge points out that the accused had been continuously within the jurisdiction of the couit and *987had, in fact, answered several subpoenas of the court and the grand jury during all of the years intervening between 1951, when the charge was filed, and 1955, when the plea was filed, and that he had actually conducted a public business during this time within six blocks of the court house. And, in my opinion, he properly construed our holding in the Bradford case to be that the “mere filing of an application for a bill of particulars would not interrupt prescription,” and concluded that the failure to bring the accused to trial was not due to the motions and pleas filed by him, but, .rather, to-the . district attorney’s lack of intention or desire to try the case, and his ■active failure to prosecute.
The holding of the majority, which is tq the contrary, is clearly not in keeping with the specific provisions of' R.S. 15 :8, and, in my opinion, has the effect of defeating the very purpose for which this provision was enacted, that is, “to enforce the right of an accused to a speedy trial and to prevent the oppression of citizens by suspending criminal prosecutions over them for an indefinite time as well as to prevent delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal accusations." State v. Theard, 203 La. 1026, 14 So.2d 824, 825. (The emphasis has been supplied by me.)
I therefore respectfully dissent.
. There are three other exceptions under Paragraph 4 of R.S. 15:8, but they have no application here, and therefore are not discussed, i. e., where the accused has escaped trial (1)' through continuances, (2) because he has absconded, or (3) is a fugitive from justice.
. I am fortified in this view for in R.S. 15:9, the section immediately following, the legislature has specifically provided for the only act of an accused that has the effect of interrupting the three-year period established in R.S. 15:8, i. e., “the prescription established in Art. 8 hereof shall be inteirupted by the absence of the defendant from, the jurisdiction of said court without the written consent of the court first obtained and entered upon the minutes, or filed in the records of the cause * * (Emphasis has been supplied by me.)