State v. Oliver

(dissenting).

My dissent in this case is based upon my conclusion, after reading the testimony of all the witnesses called by the defendants and by the district attorney, that no officer authorized by law to institute' criminal proceedings had knowledge of the commission of the crime until within one year prior to the date on which the indictment was returned. Nor does the testimony *671 show that facts came to the knowledge of the district attorney sufficient to put him on guard and to make it his duty to institute an investigation, until the month of October, 1938, which was less than 12 months ' from the date on which the indictment was returned.

The testimony shows, and the district attorney admits, that he had knowledge of the check transaction in the year 1937. By “check transaction” I mean the delivery of the $400 check to the defendant Oliver by a' representative of the oil company. But it was not the duty of the district attorney to follow this transaction up and see that Oliver spent the money as contemplated.

The defendant Oliver is not prosecuted for unlawfully receiving the check or its proceeds. The charge made against him is that he embezzled the proceeds, or unlaw-fully appropriated the same to his own use and benefit. Just when he did that is not made clear by the record. The crime was committed when the proceeds of the check were feloniously appropriated to the use and benefit of the defendants.

It is true, of course, that, when facts relating to the felonious appropriation of the money came to the knowledge of the district attorney, it was his duty to make an investigation. But the record clearly shows, in my opinion, that no rumors or suggestions came to the ears of the district attorney that the money had been feloniously appropriated by the defendants, until the month of October, 1938, and the indictment was filed on July 24, 1939. As we said in State v. Perkins, 181 La. 997, 160 So. 789, 792, “the real situation” was not made known to the district attorney more than a year prior to the date on which the indictment was filed.

This was the conclusion reached by the trial judge, who in a written opinion reviewed and commented upon the testimony of the witnesses. We quote the following from his written opinion:

“After this check was received by Oliver, nothing was heard of it, or of the disposition made of the $400.00, until the month of October, 1938, some ten (10) months prior to the rendition of the indictment, when rumors reached the ears of certain members of the Police Jury and the District Attorney that all or a major portion of this $400.00 had been misused or embezzled by the defendant Oliver, with the aid and assistance of his wife, Mrs. Martha Oliver, and co-defendant Clovis Dardeau. At that time, October, 1938, the defendants were questioned about this $400.00 check and the manner in which it had been used by the defendants, and defendants, by false statements and accounts to the Police Jury and the District Attorney, led them to believe that said $400.00 had not been received by défendant Oliver, as police juror, or for the account of the Police Jury, but that said $400.00 had been received by Oliver for the account of defendant Clovis Dardeau, who, they represented, had been employed by the Oil Company to repair the damage caused to the road.”

The judge, commenting upon the testimony of the defendant Oliver, said:

“The defendant, J. D. Oliver, by his own testimony, admitted that what he and Dar *673 deau meant when they alleged in their plea of prescription that the District Attorney ‘had knowledge of the offense’ more than one year prior to the finding of the indictment, was that the District Attorney had knowledge that he, Oliver had received this $400.00 from Oil Company. This defendant further admitted that he did not mean to say that the District Attorney had knowledge that some of the money was misused or embezzled. At page 14 of the transcript of the testimony, from testimony of J. D. Oliver, the following is quoted:

“‘By Mr. Guillory:

“ ‘Q. What do you mean when you said the District Attorney had knowledge, do you mean to say that I had knowledge of the fact that you had received the check, or I had knowledge of the fact that .you had stolen some money? A. I mean to say that you had knowledge of the check that the oil man had given me for the damages on the road.

“ ‘Q. You don’t mean to say that I had knowledge that you had stolen some of that money? A. No.’”

Similar testimony is found throughout the record. Witnesses called by defendants testified on direct examination that the district attorney 'did have knowledge of the “transaction” more than 12 months before the indictment was found. But on cross-examination they said that what they meant was that he had knowledge of' the check transaction — that the district attorney knew that Oliver had received the check and not that he had misappropriated its proceeds.

I respectfully dissent.