On Second Rehearing.
HAWTHORNE, Justice.In our opinion on first rehearing we concluded that the prescription of three years provided in R.S. 15:9 was not applicable to this case, and on this question our decision is now final. A second rehearing was granted only for further consideration of the applicability, of R.S. 15:8.
It is advisable to reiterate the following facts: The bill of information charging the defendant with a felony was filed on August 9, 1951. On April 30, 1952, he was arraigned and pleaded not guilty. On May 19, 1952, with consent of the court he withdrew his plea of not guilty and at that time filed a motion for a bill of particulars, a motion for a preliminary hearing, and a plea to the jurisdiction of the court.1 No further proceedings were had in the case until April 6, 1955, when defendant filed a plea of prescription based on the allegation that more than three years had elapsed since the filing of the bill of information without his having been tried. This plea was sustained by the district judge, and the State appealed.
*989Under the provisions of R.S. 15:8, in felony cases when three years elapse from the date of the filing of 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 fails or neglects 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.
In the instant case more than three years elapsed from the date of the filing of the bill of information (August 9, 1951) to the filing of the plea of prescription (April 6, 1955), and the accused had not been tried.
. It is the State’s contention that the mere filing of these dilatory pleas by the accused on May 19, 1952, interrupted the prescription of three years provided in R.S. 15 :8.
In State v, Bradley, 227 La. 421, 79 So. 2d 561, 563, this court construed the provisions of Article 8 of the Code of Criminal Procedure, R.S. 15:8. As we pointed out in that opinion, in those felony cases in which the district attorney fails-to enter his nolle prosequi although three years have elapséd from the date of the information without the defendant’s having been tried, the court may cause such a nolle prosequi to be entered on motion of the defendant. In the course of the opinion we said:
“ * * * Article 8, by using the word may rather than the word shall, leaves this decision to. the discretion of the trial judge. This is as it should be. It is conceivable that three years could elapse after the filing of a bill of information without the defendant’s being brought to trial, and that the district attorney would refuse to enter a nolle prosequi because he felt that there was a valid reason for the State’s delay. If the trial judge on motion of the defendant rules the district attorney to show cause why a nolle prosequi should not be entered, and after hearing decides that the trial of the accused has been delayed for a justifiable reason, the court can refuse to enter a nolle prosequi.”
In the Bradley 'case more than three years elapsed from the filing of the bill of information to the filing of the plea of prescription, and the defendants had not been tried,... We held that Article 8 of the Code of Criminal Procedure applied to the case, and that the only question presented on that appeal was whether the trial judge had abused his discretion under Article 8 in causing a nolle prosequi to be entered upon motion of counsel for the defendants. In other words, the rationale of the Bradley opinion is that where three years elapse in a felony case without the defendant’s being tried and the district attorney fails to enter his nolle prosequi, the question of whether the three-year prescription of Article 8 has accrued is in the discretion of the trial judge, subject to review by this court.
*991The instant case is different in one important particular from the Bradley case. The defendant in the instant case filed dilatory pleas during the three-year period between the bill of information and the plea of prescription. However, it is our view that the filing of these dilatory pleas in no way affects the discretion vested in the trial judge by Article 8 to determine whether the defendant’s plea of prescription is well founded under that article. Therefore, the sole question we are here called upon to decide is whether the trial judge in the instant case has abused his discretion in sustaining the plea of three-year prescription filed under the provisions of R.S. 15 :8.
The last paragraph of R.S. 15:8 provides :
“Nothing in this article shall apply or extend to an accused person * * * who has escaped trial through dilatory pleas H; * * ”
Since more than three years had elapsed from the date of the filing of the bill of information, the question which the trial judge was called upon to answer in this case was whether the mere filing of dilatory pleas by this accused within the three-year period, and the pendency of these pleas, caused him to escape trial under the provisions of the last paragraph of R.S. 15:8, the decision of this question, as we have heretofore pointed out, being left to the trial judge’s discretion.
When the trial judge sustained the plea of prescription in the instant case, he obviously had concluded that the defendant had not escaped trial through dilatory pleas. Since the record in the instant case shows only that the pleas were filed but does not disclose that any further proceedings were, had with reference to them, we cannot say from the record that by merely filing the pleas the defendant escaped trial through dilatory pleas, and consequently there is no showing in this court by the State that the trial judge abused the discretion vested' in him when he sustained defendant’s plea of prescription.
As we have said, it is the State’s contention that the mere filing of the dilatory pleas in the instant cáse interrupted the prescription of three years provided in R.S. 15 :8. Under the view we take of this case, however, we do not- think that the question of interruption is presented here— the only question, as already ■ statedj is whether the trial judge abused his discretion in concluding that the defendant had not escaped trial through dilatory pleas.
It is true that in other cases in which the provisions of Article 8 have been discussed the court has used the term “interruption” in discussing what effect the acts of the accused which are enumerated *993in the last paragraph of Article 8 might have upon the prescription. But see State v. Theard, 203 La. 1026, 14 So.2d 824, construing Act 323 of 1942. However, we have never been called upon to decide whether these acts constitute an interruption or a suspension of prescription, or whether perhaps they have the effect, under a literal interpretation, of making the provisions of Article 8 non-applicable. This question could have arisen in the instant case if the trial judge had found, in his discretion, that the defendant had in fact escaped trial through dilatory pleas. Then we would have been called upon to decide whether a defendant’s escaping trial through such pleas has the effect of interrupting prescription, of suspending prescription, or of taking the defendant entirely out of the provisions of the article.
On original hearing in this case I dissented from the holding that the plea of prescription filed by defendant was well founded' under R.S. 15 :8, for I was at that time of the opinion that the mere filing of dilatory pleas had the effect of interrupting the prescription of Article 8. After more mature consideration, however, I am convinced that I was in error, and my views now are those embodied in the present opinion.
For the reasons assigned the judgment of the trial court sustaining the plea of prescription and ordering a nolle prosequi to be entered in this cause is affirmed.'
SIMON, J., dissents, adhering to the opinion rendered on rehearing March 26, 1956.. In the course of this opinion we will . trea.t all of these pleas as dilatory in nature without .passing upon which are dilatory and which are not.