State v. Bischoff 146 La. 748, 84 So. 41

DAWKINS, J.

Defendant was convicted

of the crime of bigamy, and prosecutes this appeal. The record contains 13 bills of exception, numbered from 1 to 10, inclusive,' and A, B, and C.

Bill of Exceptions No. 1.

[1 ] This bill was reserved to the overruling of a motion for a continuance on the ground of the absence of certain witnesses residing hi the state of Texas. The motion, which was properly verified, set up that the witnesses would testify to certain facts, material to the defense, as follows:

(1) E. L. Kowalski, of Brownsville, Tex.: That he was the deputy clerk of Cameron county, Tex., who issued the license to marry “Adolph Bishop and Miss Rosalie Asbury” November 27, 1912, and that the defendant was not the person to whom said license was issued (the license in question being the one-which was used in proof of the first marriage of the accused); that he knew the reputation of the chief prosecuting witness, Rosalie As-bury, alleged first wife of defendant, and that she was intimately connected with a gambler and alleged smuggler op the Mexican border by the name of Bill Lawson, hailing from Tampico, Mexico; further, that the said Rosalie Asbury was commonly known (during the time she is claimed to have been married to defendant) as Mrs. Gonzales, and was reputed in that section of the border to have married Gonzales; further, that said Kowal-ski was present when one Rev. J. M. Perry (the minister who, it was claimed, had performed the marriage between defendant and his said first wile) made an affidavit that defendant was not the man whom he had united in marriage in the ceremony celebrated between Adolph Bishop and Rosalie Asbury, the said minister being present for the trial, and, according to defendant’s information, intend- ing to repudiate his said affidavit and to swear that accused was the same person *753whom lie had so married at the time referred to. Attached to the motion was an affidavit by Kowalski (copy) in which he had sworn to the best of his knowledge and belief defendant was not the man to whom the license had been issued, giving certain reasons therefor; also copy of the alleged affidavit by the said Rev. Perry, and a telegram from Kowal-ski at Puebla, Mexico, dated April 3, 1919, stating that he had been detained there on account of important business, would not be able to appear at Lake Charles on April 7th, the day fixed for the trial, but could and would appear on Api*il 25th.

(2) Judge W. S. Holman, of Bay City, Tex., would testify that the reputation of the said Rosalie Asbury for truth and veracity was bad, and that an injunction had been issued against her at Bay City, Tex., to prevent her from slandering another woman, but that the said Rosalie Asbury had left there before service of the writ could be made, ‘Defendant swore that he had just learned of the existence of said witness, and had not had time to communicate with and procure his attendance.

(3) That an unnamed justice of the peace at Harlengin, Tex., would testify that said Rosalie Asbury had, subsequent to the alleged marriage with defendant, made an affidavit before him charging a Mexican with the theft of certain jewelry under the name of Mrs. Antonio Gonzales, or Rosalie Asbury; that defendant had only recently come into possession of said information, and believed that he could have the said officer present for the trial if the same were postponed for a reasonable time.

The motion made all other formal and essential averments, and was therefore in proper and legal form.

The motion was overruled by the lower court for the following reasons, quoted from the per curiam:

“This exception was taken to the judgment bf the court overruling a motion for a continuance of the case. The motion for continuance was opposed by the state for the reason that the defendant was arraigned on February loth, which was fully seven weeks before the date of fixing for trial, to wit, April 7th, and there was therefore ample time given defendant to arrange for the attendance of his witnesses in the state of Texas, and to procure their attendance. Furthermore, these witnesses being outside the jurisdiction of the court, no assurances could bo given that the witnesses could ever be produced at this trial.”

[2] It is true that all of the witnesses, both for the state and defense, on the issue of the first marriage, which was denied by the defendant, as well as records, etc., had to be imported from the state of Texas, where the first marriage was claimed to have taken place. However, a very wide discretion is allowed trial courts in the matter of continuances, and, unless there be an apparent abuse of it, this court will not interfere. Kowalski was undoubtedly an important witness for defendant, if he would swear to the facts claimed for him. However, his affidavit, attached to the motion, which appears to have been made on the occasion of a visit by the defendant to him about January 20, 1919, does not positively deny the identity of defendant with the person who applied for the license, but recites:

“To the best of my knowledge! and belief, I have no recollection of ever having seen Adolf Bischoff, of Do Quincy, La., before the 20th day of January, 1919. The said Mr. Adolf Bischoff has a certain foreign accent in his speech very noticeable, which I am confident of recalling, if I had ever prior to said January 20, 1919, met him; and, as it is necessary to interrogate an applicant for a marriage license, I have every reason to believe and do believe that he is not the party to whom I issued said marriage license above referred to.”

His testimony was also important in connection with the affidavit first made by Rev. Perry, the minister reputed to have performed the marriage ceremony under the license issued by Kowalski, and in which Perry also stated:

*755“I have no recollection oí ever having heretofore met or performed the marriage ceremony above referred to Mr. Adolf Bischoff and the said Rosalie Asbury”

—which, was subsequently recalled and repudiated by Perry, and which was made in the presence of Kowalski. Perry was present at the trial and did repudiate the affidavit, and swore that defendant was the same person whom he had married to the said Rosalie As-bury; but counsel for defendant cross-examined him fully, as it must be presumed for the purposes of this motion that he would do, in the presence of the jury, who could form their own opinion as to the weight of the witness’ testimony. Perry had notified Ko-walski, and through the latter the attorney for defendant, of his intention to recall and repudiate the said affidavit, and of his purpose to attend the trial of a civil suit for divorce between defendant and the second wife, more than a month prior to the trial of this case below — that is, on March 6th, 1919 — and they had every opportunity to know of this fact, and to be prepared to combat Perry’s testimony when the case came up. Kowalski was a lawyer, and in some relation, not fully disclosed in the record, had participated in the preparation of the defense by gathering testimony in the state of Texas. Both he and the present counsel for defendant knew and should have realized the importance of his appearance at the trial. Under such circumstances, we can hardly conceive that he was not promptly notified of the fixing of the case on February 15th for April 7th. In fact, Perry’s affidavit, to which Kowalski was a witness, was taken four days after the fixing of the case, or on February 19th, and we must assume that Kowalski was so advised. If he was, and knowingly went to Mexico, instead of arranging to come to the trial, then we have no assurance that he would not find some other excuse for not appearing on another date. If local counsel did not notify him until a few days before the trial, as would appear from the record, then there was not that diligence on his part and that of defendant, who was himself on bail and could have notified Kowalski, which the law requires, and defendant has no one to blame for this witness’s absence but himself and his counsel.

As to Judge W. S. Holman, the only relevant fact to which it was alleged he would testify was that the reputation of the said Rosalie Asbury for truth and veracity was bad; but it was admitted in the motion that this was discovered a few days before the trial, and that said Holman had expressed a willingness to attend defendant’s trial, and no reason is given for the failure to use the mails or the telephone or telegraph facilities for procuring his presence. There appears to have been a lack of proper diligence.

We are forced to reach the same conclusion in the matter of the justice of the peace at I-Iarlingen, Tex. Besides, his testimony would have been offered to impeach the witness Rosalie Asbury on a remotely relevant fact as to having made an affidavit in a name other than that of Mrs. Adolph Bishop or Mrs. Adolf Bischoff.

The showing made is not sufficient to convince us that the lower court abused the sound legal discretion allowed it by law in refusing the motion for a continuance.

Bill of Exceptions No. 2.

[3, 4] Bill of Exceptions No. 2 was reserved to the overruling by the court of defendant’s objection to the admission in evidence of a certified copy of the marriage records of the clerk’s office of Cameron county, Tex., showing the marriage of Adolph Bishop and Miss Rosalie Asbury—

“on the ground and for the reason that same was inadmissible, irrelevant, and immaterial, and showed a variance in the allegation named in the indictment, the same not being idem sonans, and that no allegation appearing in the indictment that defendant had married in any other name than his own name of Adolf Bischoff,' *757and objected to parol evidence contradicting said documentary evidence, and to the further offering in evidence a certificate purporting to have been signed by a minister, J. M. Perry, uniting in marriage Mr. Adolph Bishop and Mrs. Rosalie Asbury. ’•s * * ”

In its per curiam the lower court states tlrat Mrs. Rosalie Asbury Bischoff testified that defendant was the identical person to whom she had been married at Brownsville, Tex., and as charged in the bill of information, this fact being denied by defendant, but who admitted that he had lived with the said witness in a state of concubinage; that said witness further testified she induced defendant to agree to a change from the spelling of his name in the German form of Adolf Bischoff to its English equivalent, Adolph Bishop, and that he afterwards changed bach to Adolf Bischoff.

The certified copy of the marriage records appear to disclose that the said record was properly kept, and the same, having been certified according to the acts of Congress, was properly admitted in evidence. Wharton’s Criminal Evidence, vol. 2 (10th Ed.) p. 1108 et seq. There was also no error in admitting in evidence the said record of a marriage between Adolph Bishop and Rosalie Asbury to prove the allegation of a marriage of Adolf Bischoff and Roaslie Asubury, the proof disclosing that defendant was the identical person who had been married under the license of which the offering was a copy. The names were idem sonans. State v. Pointdexter, 117 La. 380, 41 South. 688; State v. Canton, 131 La. 255, 59 South. 202; Wharton’s Criminal Evidence, vol. 1, p. 289 et seq.

Bill of Exceptions No. 3.

[5] This bill notes the objection by defendant to the admission in evidence of documents marked “SI” to “S12,” inclusive, on the ground that they were irrelevant, immaterial, and not properly identified; also that document marked “S7” constituted a variance in the indictment and proof. •

We fail to find “SI” in the record, but the others consist of envelopes, letters, shipping tags, the flyleaf of a book, etc., which bore the names of “A. Bischoff,” “Mrs. A. Bischoff,” “Mrs. E. A. Bischoff,” and which we are informed by the per curiam were identified as being in the handwriting of the defendant. The state having previously offered in evidence the marriage license evidencing the marriage of defendant to Mrs. Marguerite Black Bischoff (the second wife), and. which it is alleged constituted the bigamy, said license showing the admittedly genuine signature of. the defendant, the documents were offered and admitted for the purpose of proving by comparison to the jury the identity of defendant with the person who wrote them, as a circumstance to show that he had been previously lawfully married to the witness Roaslie Asbury Bischoff.

We find no error in the ruling.

Bill of Exceptions No. 4.

[6] Defendant offered in evidence an affidavit by E. L. Kowalski (principal witness for whose absence continuance had been sought), “likewise true copies of the records of Cameron county, Tex., showing minister’s return thereon, for the purpose of impeaching testimony of minister, * * *” and also evidence to explain absence of Kowalski. The judge sustained an objection by the state to these offerings on the ground that the same were ex parte, but states that he permitted counsel to testify as to what was done to obtain the attendance of said witness. He further states that the copy of the record was not certified according- to the acts of Congress, but was identical with the one offered by the state to prove the first marriage.

We see no error in the ruling;-

*759Rill of Exceptions No. 5.

[7] Tins bill was reserved to the exclusion of part of the record in the divorce suit by the second wife against defendant, including application, commission, and interrogatories to be propounded to the witness J. M. Perry, together with letters from Perry to Kowalski, and from Perry to the clerk of court of Cal-casieu parish, all of which (except the letter of Perry to Kowalski) were objected to by the state for the reason that same were irrelevant and immaterial. Defendant declined to introduce the letter from Perry to Kowalski by itself, though no objection was made thereto, and defendant had ample opportunity to cross-examine Perry in regard to the same, who was a witness at the trial. The offerings were made for the purpose of impeaching Perry, but we can see nothing in them which could have had that effect; and the objection was therefore properly sustained.

Bill of Exceptions No. 6.

[8] Defendant offered in evidence certified copy of a civil proceeding in the district court for Matagorda county, Tex., to show that the witness Rosalie Asbury had been enjoined from slandering, etc., a Mrs. Gustaf-son, for the purpose of impeaching the credibility of said witness, who had sworn that she had not been so enjoined, which was objected to by the state as irrelevant. There was no showing that the papers had ever been served on the witness, or that she knew of them; and, besides, she could not be impeached on an irrelevant matter. There was no error in the ruling.

Bill of Exceptions No. 7.

[9] Defendant sought to show by cross-examination of one O. J. Doubreck, a witness for the state, that Mrs. Gustafson, the plaintiff in the suit referred to in bill No. 6, was a woman “whose character was above reproach,” “offered for the purpose of showing the animus of said witness [Asbury] toward defendant,” which was objected to by the state as irrelevant and immaterial, and sustained. There was no error. »

Bill of Exceptions No. 8.

[10] This bill relates to language alleged to have been used by the district attorney in the closing argument for the state as follows:

“Defendant is the only witness in his behalf, and the jury has' a right to consider his personal interest in the case,” which was objected to by defendant “on the ground and for the reason that it prejudiced the minds of the jury against defendant, * * * since his reputation had not been attacked, and no attempt had been made to impeach said witness on the trial of said cause, but, on the contrary, his reputation had been admitted to be good,” etc.

The judge’s per curiam states that the language attributed to the district attorney is not correctly quoted? that it was to the effect that the jury were the sole judges of the credibility of all witnesses who had testified on the trial; that, the defendant having taken the stand in his own behalf, he was subjected to the same rules as applicable to' any other witness, and that the jury therefore had a right to consider the interest which he had in the result of the trial; that the jury ought not, therefore, to give greater weight and credit to the unsupported testimony of the defendant than to all of the other disinterested witnesses who had testified for the state.

We can see little or no difference, in effect, between the remarks attributed to the counsel for the state by counsel for the defendant and the substance thereof given by the judge. If anything, the statement by the court makes the attack upon the defendant as a witness stronger than that of defendant’s counsel. However, we know of no law which prevents the counsel for the state *761from commenting in a reasonable manner upon the testimony of an accused, when be bas become a witness in bis own defense. As a witness be subjects bimself to all of tbe rules and legitimate criticism of any other witness, tbougb bis character as an accused cannot be assailed, except when it is placed in evidence.

We find no error.

Bill of Exceptions No. 9.

[11] This bill of exceptions covers an alleged charge by tbe lower court to tbe jury. We are informed by tbe per curiam that no request for a written charge was made, and tbe same was given orally. It also adds:

“Tbe judge bas no means of knowing whether he has been correctly quoted.”

The charge as quoted by counsel, we are informed by tbe court, purports to have been taken down by counsel for tbe defendant in shorthand notes at tbe time it was given, but be (tbe court) bas no way of verifying same.

Tbe charge complained of bas not been properly established for our consideration. Defendant bad tbe right to require that tbe charge be given in writing, and having failed to do so, and tbe court declining to approve tbe language attributed to it, we are unable to consider tbe matter.

Bill of Exceptions No. 10.

[12] This bill presents another conflict between tbe statements of tbe counsel for defendant and tbe court. It is based upon tbe contention that tbe jury was coerced into rendering a verdict of conviction. Tbe per curiam informs us that tbe case was given to the jury about 3:30 p. m., and that between that time and 9 o’clock p. m. two reports were made of their failure to agree, each at tbe inquiry of tbe judge, one about 6 o’clock p. m., for purpose of ascertaining whether it would be necessary to provide supper for them, and tbe other about 9 p. m., to determine whether it would be worth while to bold tbe court open any longer before adjourning for tbe night; that adjournment was taken about 9:20 p. m., and on tbe convening of court next morning at 9 o’clock tbe jury promptly returned its verdict.

There is no merit in this bill.

Bill of Exceptions A.

[13] This bill covers tbe refusal of tbe judge to permit tbe deputy sheriff, in charge of tbe jury, to testify to the number of times they requested him to report to tbe court their inability to agree upon a verdict; also tbe offer of counsel for defendant to give similar testimony, objected to by tbe state, and sustained by tbe court for tbe reason that tbe testimony “was inadmissible for any purpose whatever.”

We will not go as far as did the lower court in bolding that such evidence cannot be received for any purpose; for, while ordinarily we take the statement of tbe judge as to what transpired, when the facts are not recorded at tbe time, still we cannot hold that there is no other method of getting the real facts before this court. Such a bolding would place tbe accused wholly at tbe mercy of tbe judge’s recollection, however erroneous it might be. Tbe proper course, especially an tbe trial of a motion for a new trial, is to admit tbe evidence, and allow this court to determine whether or not there bas been any improper conduct on tbe part of the lower judge or jury. However, tbe minutes of tbe court and other proof in tbe record show that this jury were not sequestered an unreasonable length of time — part of one afternoon and night — and in these circumstances it makes no difference bow often they reported their inability to agree and asked to be discharged. This court will not interfere except in a case of clear abuse.

*763The error was not sufficient to justify a reversal.

Bill of Exceptions B.

[14] On the hearing of the motion for a new trial defendant tendered one Frank Perkins, who was the foreman of the jury in this case, “for the purpose of showing there was misconduct on the part of the jury, as shown by the bill of exceptions reserved at the time, and in support of the allegations of the motion for a new trial on said subject-matter, and for the purpose of showing that a majority of the jurors attempted to override the will of the minority, that said jurors insisted upon rendering a verdict in order to be kept from being locked up further, and that the jurors were prejudiced against the defendant because testimony had been offered to the effect that he was a German,” which was objected to by the counsel for the state on the ground that a juror could not be heard to impeach his own verdict.

The ruling was correct, in view of the general character of the allegations of the motion, no charge of force or violence having been made that would induce any juror to render a verdict to which he did not willingly agree. The per curiam further informs us that the only testimony as to defendant’s nationality was given by himself.

Bill of Exceptions O.

This bill was -reserved to the overruling of the motion for a new trial. The motion was based upon the allegation that the verdict was contrary to the law and the evidence, as well as all of the various matters and rulings embraced in the 12 bills of exception heretofore referred to and disposed of, as well as the following:

[15] (1) Because the alleged first wife was permitted to testify against defendant.

The per curiam informs us that no. objection was made to her testifying at the time her evidence was given, and the objection comes too late when made' for the first time in a motion for a new trial. Act No. 157 of 1916 permits, but does not compel, one spouse to become a witness for or against the other, and, the witness having testified without objection, defendant cannot complain after conviction.

(2) Because the wife was permitted to testify in detail to private relations between the spouses. No objection was made at the time, and the same came too late-when urged in a motion for a new trial.

Defendant further alleged that he had not had time to complete his investigation and to furnish the affidavits of certain witnesses in regard to certain matters which had transpired in the state of Texas, which it was desired to prove in order to affect the credibility of the witness Rosalie Asbury, and asked that he be given time within which to make said investigation, and allowed to amend the motion after doing so; that he expected to obtain an affidavit showing that a bartender by the name of E. A. Bishop resided at Mission, Tex., while the prosecuting witness, Rosalie Asbury, lived there, and that she was well acquainted with him, which had been denied by her, and that the said witness did not live with defendant as his wife, but as his concubine, which was well known in said community; that he also expected to prove by one William Belling-hausen, of Brownsville, Tex., that he is well acquainted with defendant, and that from February to April, 1913, he and defendant resided together at a boarding house in said city; that defendant slept there; that he was never known as F. A. Bishop, and was never known to have lived with a woman under that name; that he always went by the name of A. Bischoff, and that said Bell-inghausen had occasion, while working for the same company, to apply to the said Bischoff for requisitions for materials, etc., *765and knew him well, and never knew of his going by any other name; that he expected to prove by one S. P. Eatton, justice of the peace at Harlingen, Tex., that the said Rosalie Asbury made an affidavit against a Mexican for the theft of certain jewelry in the name of Mrs. Antonio Gonzales or Rosalie Asbury; that he expected to prove by Judge W. S. Holman, of Bay City, Tex., that he was well acquainted with Rosalie Asbury, and that she was an eccentric person, addicted to the use of drugs and other narcotics, was a disturbing element in the community, and that her reputation for truth and veracity was bad; that she did not teach school, and left Bay City to escape the service of. process instituted against her in the district court, of which he was judge; that the applicant in the motion for new trial desired to take the testimony of the deputy sheriff in charge of the jury in regard to the matters complained of in bill of exceptions No. —.

Finally that defendant was entitled to a new trial on the ground that no proof was offered by the state in support of its allegation in the bill of information negativing prescription, and that it was incumbent upon the state to adduce proof that the offense alleged had not been brought to the attention of a public officer or officer authorized to prosecute the same within the 12 months pri- or to the filing of the bill.

Defendant was subsequently allowed to amend his motion for new trial and to attach the affidavits of the various persons mentioned as to the matters referred to in the motion.

[16] The motion and amendment, together with the exhibits, do not disclose any newly discovered material facts, which might not have been furnished by the exercise of due .’diligence on the former trial, and there was no error in overruling the motion for a new trial on that score.

[17] This leaves the only remaining question to be considered, and that is whether or not the state was required to make proof of the fact as alleged in the bill of information that the commission of the offense had not been brought to the attention of an officer authorized to prosecute within the time during which prescription would have otherwise run. Apparently there was no charge to the jury on this score, and none seems to have been requested by either side; the matter being raised for the first time in the motion for a new trial. However, the lower judge admits in his per curiam that no proof was offered by the state in support of that allegation of the information, but states that he overruled the motion for new trial on the point because the burden was upon the defendant to prove that the offense had been brought to the attention of an officer authorized to prosecute within the year after its commission. The matter involves, primarily, a question of fact, and the issue should have been raised by requesting the court to charge that, unless such proof were administered by the state (granting that defendant’s contention is correct), then they should acquit because of the failure to make out its ease against defendant, with proper exception reserved to the refusal of the court to give such charge. However, we take it, from the position taken by the judge in ruling on the point in the motion for a new trial, that such a request would have been refused; and, since it is admitted that no such proof was administered, we think we are justified in passing upon the question.

No formal plea of prescription was filed, but under the peculiar wording of our statute, and in view of the fact that the plea of not guilty puts at issue every sacramental allegation of the information or indictment, we think no such plea was necessary.

Section 986 of the Revised Statutes reads I as follows:

*767“No person shall be prosecuted, tried or punished for any offense, -willful murder-, arson, robbery, forgery, and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer, having the power to direct a public prosecution. * * * ”

We have uniformly held that, unless the indictment or information negatived prescription ,on its face (that is, if the offense was committed .more than 12 months prior to the finding of the bill), no offense was charged. State v. Drummond, 132 La. 749, 61 South. 778; State v. Conega, 121 La. 522, 46 South. 614; State v. Hoffman, 120 La. 953, 45 South. 951; State v. Foley, 113 La. 206, 36 South. 940; State v. West, 105 La. 639, 30 South. 119; State v. Hinton, 49 La. Ann. 1354, 22 South. 617; State v. Pierre, 49 La. Ann. 1159, 22 South. 373; State v. Wren, 48 La. Ann. 803, 19 South. 745; State v. Davis, 44 La. Ann. 972, 11 South. 580; State v. Joseph, 40 La. Ann. 5, 3 South. 405; State v. Robinson, 37 La. Ann. 673; State v. Victor, 36 La. Ann. 978; State v. Vines, 34 La. Ann. 1073; State v. Morrison, 31 La. Ann. 211; State v. Williams, 30 La. Ann. 842; State v. Snow, 30 La. Ann. 401; State v. Hall, Man. Unrep. Cas. 240; State v. Forrest, 23 La. Ann. 433; State v. Bryan, 19 La. Ann. 435; State v. Peirce, 19 La. Ann. 90; State v. Bilbo, 19 La. Ann. 76; State v. Freeman, 17 La. Ann. 69; State v. Foster, 7 La. Ann. 255; State v. Cobbs, 7 La. Ann. 107. The effect of this ruling is to say that, although the statute does not say in so many words that prescription shall begin to run, in the absence of a different showing in the bill, from the date of the commission of the offense, such was the intention of the lawmaker; and this interpretation has become the settled jurisprudence of this court. The law does not say merely that the offense shall be prescribed, but that “no pérson shall be prosecuted, tried or punished, * * *” indicating that, if it be brought to the attention -of the court at any time, from the initiation of1 the criminal proceedings to the end of the punishment, that the charge was not preferred within the period provided by the statute, the proceedings should be abated; and this would seem to justify the conclusion which we have heretofore reached that we might consider the matter, even though raised for the first time in a motion for new trial.

If it be necessary that the state should negative prescription in order to state a cause of action against an accused, why then, under the elementary principles of law, pleading, and evidence, does it not have to administer the proof to conform to or sustain that pleading? Of course the question of when the charge was found does not pertain to the guilt or innocence of the accused, but it does affect very vitally the issue of whether or not he is guilty of a crime of which he can be tried, convicted, or punished; in other words, the jury are powerless to try, and the judge is without power to punish, “unless the indictment or presentment for the same' be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct a public prosecution.” This proof not having been made in the present case, the verdict of the jury and the sentence of the court were in violation of the prohibitory provisions of the law, and therefore without effect.

We cannot reconcile the conclusions reached herein with the holding in the cases cited in the brief of counsel for the state, to wit, State v. Barrow, 31 La. Ann. 691, State v. Barfield, 36 La. Ann. 89, etc., in which it was held that, inasmuch as the charge that the offense was not made known to an officer au-thoz-ized to pi-oseeute was a negative, easier for the defense to establish than for the state, and that the latter was not required to prove a negative, it cast the burden on the defendant. The fallacy of this view is shown *769when it is realized that in most criminal cases the accused denies the commission of the offense, and to make proof of the fact that it was committed and accordingly brought to the attention of a proper officer would not only be inconsistent, but dangerous, especially before a jury, in event he failed to establish the facts to support the contention that prescription had run. Even in civil matters the plea of prescription necessarily admits, for its purposes, that the right or debt once existed; and juries would not readily appreciate the fine distinctions which are made in law that facts may be admitted for limited purposes.

For the reasons assigned, the verdict and sentence appealed from are annulled and reversed, and this case is hereby remanded to the lower court to be proceeded with according to law.

O’NIELL, J., dissents from the ruling on bill of exceptions No. 9 that this court cannot consider an erroneous charge ..given to the jury when the defendant did not ask for a written charge, and the trial judge declares in his per curiam merely that he “has no means of knowing whether he has been correctly quoted” in the bill, and dissents also from the ruling on bill of exceptions C that the state should have proven to the jury that the commission of the offense was not known to a public officer having authority to direct a public prosecution as long as a year before the finding of the indictment.

On Rehearing.

PROVOSTY, J.

The accused was convicted of bigamy on an information filed by the district attorney. He applied ineffectually for a new trial, and then appealed to this court. On a first hearing a large number of bills of exceptions which had been reserved by him were found to be without merit. One of the bills, however, was sustained, and the judgment below and the verdict were set aside, and the case was remanded to be proceeded with according to law. A rehearing was granted to the state, and the case is now before us on this rehearing.

The bill which was sustained, and which has now to be considered, is that relating to the refusal of the trial court to grant a new trial on the ground that on the trial the state offered no evidence in support of the following allegation:

“That the said offense was not made known to any officer of the law, having the authority to begin a public prosecution thereof, until the 29th day of January, 1919.”

The contention on the motion for a new trial was, and in this court now is, that in the absence of proof of this allegation the case is amenable to section 986, R. S., reading:

“No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct * * * prosecution. * * * Nothing herein contained shall extend to any person absconding or fleeing from,justice.”

The information was filed on January 31, 1919, more than three years after the alleged date of the commission of the offense.

In ruling as he did, the learned trial judge based himself upon the decisions of this court in State v. Barrow, 31 La. Ann. 691, State v. Barfield, 36 La. Ann. 90, and State v. Robinson, 37 La. Ann. 676.

The latter two decisions are founded upon the bare authority of the first, the Barrow Case. The question was not re-examined in them. In the Barrow Case the court reasoned as follows:

“Ordinarily a negative averment has not to be proved, and often cannot be. The negation is not susceptible of proof, other than by proof of the affirmative fact which'is'denied. The *771negation here is that knowledge of the crime was not brought to a public officer of requisite authority. The proof must be of the affirmative fact that such knowledge was thus brought to him. Upon whom is the onus?

“It must rest on the party who can most conveniently and most certainly make the proof. Now an affirmative can more certainly, naturally, and logically be proved than a negative. If the onus is on the state, then it must prove that knowledge was not brought to any of its officers who had authority to investigate the crime. It must prove a universal negative. If the onus is on the defendant, he need only prove that knowledge was brought to one of such officers. He need only prove a particular affirmative.”

This reasoning is not satisfactory. In so far as it is sound, it is based on a proposition which the court has assumed to be true, but which in fact is not true. We refer to the assumption upon which the decision rests largely (and perhaps, in final analysis, rests entirely) that the negative which the state is called upon to prove in such a case is “a universal negative.”

Treating of the burden of proof where a negative is involved, Best on Ev. § 270 (page 262 of Chamberlayne’s Ed.), says:

“Much misconception and embarrassment have been introduced into this subject by some unfortunate language in which the above principle has been enunciated. ‘Per rerum naturam,’ says the text of the Roman law, ‘factum ne-gantis probatio nulla sit;’ and our old lawyers lay down broadly, ‘It is a maxim in law that witnesses cannot testify a negative, but an affirmative.’ For these and similar expressions it has been rashly inferred, and is frequently asserted, that ‘a negative is incapable of proof’ —a position wholly indefensible, if understood in an unqualified sense. Reason and the context of the passage in the Code alike show that by the phrase ‘Per rerum naturam,’ etc., nothing more was meant than to express the undoubted truth that, in the ordinary course of things, the burden of proof is not to be cast on the party who merely denies an assertion. The ground on which this rests has been already explained; and another grave objection to requiring proof of a simple negative is its indefiniteness. ‘Words,’ says L. C. B. Gilbert, ‘are but the expression of facts; and therefore/ when "nothing is said to be dohe, nothing can-be said to be proved.’ ‘Negativa nihil impli-cat.’ ‘Negativa nihil ponunt.’ A person asserts that a certain event took place, not saying when, where, or under what circumstances; how am I to disprove that, and convince others that at no time, at no place and under no circumstances, has such a thing occurred? ‘In-definitum aequipollet universali.’ The utmost that could possibly be done in most instances would be to show the improbability of the supposed event; and even this would usually require an enormous mass of presumptive evidence. Hence the well-known rule that affirmative evidence is in general better than negative evidence. But when the negative ceases to be a simple one, when it is qualified by time, place, or circumstances, much of this objection is removed ; and proof of a negative may very reasonably be required when the qualifying circumstances are the direct matter in issue or the affirmative is either probable in itself, or supported by a presumption, or peculiar means of proof are in the hands of the party asserting the negative.” (Italics ours.)

Now, "the qualifying circumstances” of the negative which the state is called upon to prove in cases like the present “are the direct matter in issue,” as will be shown hereinafter ; and “peculiar means of proof are in the hands of the party,” the slate, “asserting the negative.”

These means are, the judge, the district attorney, and the sheriff of the parish, all three of whom are present in court at the trial of the case. They are the public officers to whom section 9S6, R. S., has reference. And even if said statute had reference also to the sheriff’s deputies, and to the justice of the peace and the constable of the ward where the offense was committed, there would be no impossibility of calling these officers also to the witness stand, or accounting for their absence. It is not true, therefore, to say that the state would in such a case be called upon to prove a negative impossible to be proved, or a so-called “universal negative.”

It will be noted, moreover, that the cases in which it becomes necessary for the state to make this proof are those in which the *773commission of tlie crime lias but recently been discovered, or in wbicb the persons haying knowledge of it haye kept it secret, and that all this is susceptible of direct affirmative proof. Besides, in all such cases the fact of the crime having remained undiscovered, or of its having been kept a secret, is so notorious that the state would hardly have any difficulty in getting the counsel of the defense to admit that no knowledge of the offense had come to a public officer.

Another assumption which in our humble judgment is made gratuitously in this Barrow Case is that it is easier for the accused to show when the prosecution acquired knowledge of the offense than it is for the prosecution to show that fact. It seems to us perfectly plain that the person who has acquired knowledge of a certain fact knows best when, where, and under what circumstances the knowledge was acquired. Por instance, the allegation in this case is that the knowledge in question was first made known to an officer on the 29th day of January, 1919. Why could not that fact have been proved? If the district attorney could be so precise in alleging it, why could he not prove it? The prosecuting officers most unquestionably know in every case when, from whom, and under what circumstances they first became informed of an offense having been committed. Why may they not make proof of those facts? On the other hand, how is an accused to know when, where, and how the prosecution acquired knowledge of the offense, unless, indeed, he happens to have been present when the knowledge was acquired? And if he knows it because he was present, why should not the officer 'who was also present know it just as well? Proof of when the prosecution first became advised of the offense would carry with it proof that knowledge had not come sooner to any public officer of requisite authority; for then every inference would point that way; and that conclusion could be safely accepted in the absence of anything to the contrary. The law, being eminently practical, does not require the impossible ; but it does, in favor of liberty, allow an accused to remain passive until a case has been made out against him; and, as will be shown hereinafter, a case is not made out against an accused when the time at which the offense is alleged to have been committed antedates the finding of the indictment or the filing of the information more than a year, and no proof is made that knowledge of the offense came to an officer of requisite authority only within the year.

The eminent judges who rendered this Barrow decision allowed themselves, we fear, to wander into the fog and morass of the burden of proof, and, with all due respect be it said, lost their way. Notwithstanding the presumption with which the law panoplies an accused, they have actually made his case harder than that of the ordinary litigant in a civil case; for there the plaintiff loses his case if from the pleadings his claim appears to be out of date and he does not prove the circumstances which have operated to keep it alive. Rabel v. Pourciau, 20 La. Ann. 131; Schlenker v. Taliaferro, 20 La. Ann. 565; Durand v. Hienn, 20 La. Ann. 345; Kentucky Bank v. East, 21 La. Ann. 276; Boyle v. Kittredge, 21 La. Ann. 273; McStea v. Boyd, 21 La. Ann. 501; Peet v. Jackson, 21 La. Ann. 267; Griffin v. Drainage District, 110 La. 840, 34 South. 799.

An allegation can no more prove itself simply because it is of a negative than an engine can furnish its own energy, or a man lift himself by pulling on the straps of his boots.

The rule of evidence, far from being that a litigant is not required to prove a negative when the establishment of it is neces*775sary to bis case, is just tlie otlier way, and as to tins all the modern writers on the law of evidence are agreed.

Chamberlayne, Ev. par. 979, states the rule as follows:

“A special and peculiarly forcible instance of the application of these rules regarding discharge of the burden of evidence concerning" facts which are within the knowledge or control of the other party is afforded where the fact or proposition to which the burden relates is in substance negative. The rule that the party to whose contention in the cause a fact is essential has the burden of evidence in regard to it is in no way'displaced by the circumstance. It is still part of the litigant’s burden of evidence to prove the negative proposition of fact, as that a certain quality does not exist in a process, thing, or person. Ho may properly be required to prove that a certain event has not happened, that a fact did not exist, or that a given person has not done a certain thing. Mere difficulty of making proof does not prevent the tribunal from requiring him that he show, as best he may, that a designated individual does not possess a certain thing.”

Elliott, Ev. par. 141, states the rale as follows:

“It is frequently said that a party is not bound to prove a negative, nor a fact peculiarly within the knowledge of the opposite party, and that the latter may have the burden of disproving it, but the mere form of an averment is Of little consequence, so far as the rule as to burden of the issue is concerned, and if, in order to establish his case and move the court in his favor, a party must prove a negative, the burden is usually upon him to do so. As a rule it is only where the fact negatived is peculiarly within the knowledge of the adversary that the burden is, in any sense, shifted to the latter, and even then it is the burden of going forward rather than the burden of ultimately establishing the case. The fact that the party having peculiar knowledge of a matter fails to bring it forward may raise a presumption or justify an inference in favor of his adversary’s claim, and thus shift the burden of proceeding in order to win, but the burden of establishing the issue is not shifted, nor is it ordinarily determined in the first instance by the mere fact that a negative is involved or that some fact is peculiarly within the knowledge of the adverse party.”

Wigmore, Ev. par. 2486, states the rale as follows:

“The characteristic, then, of the burden of proof (in the sense of a risk of nonpersuasion) in legal controversies is that the law divides the process into stages, and apportions definitely to each party the specific facts which will in turn fall to him as the prerequisites of obtaining action in his favor by the tribunal. It is this apportionment which forms the important element of controversy for legal purposes. Each party wishes to know of what facts he has the risk of nonpersuasion. By what considerations, then, is this apportionment determined? Is there any single principle or rule which will solve all cases and afford a general test for ascertaining the incidence of this risk? By no means. It is often said that the burden is upon the party having the affirmative allegation. But this is not an invariable test, nor even always a significant circumstarfce; the burden is often on one who has a negative assertion to prove; a common instance is that of a promise alleging nonperformance of a contract. It is sometimes said that it is upon the party to whose case the fact is essential. This is correct enough, but it merely advances the inquiry one step; we must then ask whether there is any general principle which determines to what party’s case a fact is essential.

“The truth is that there is not and cannot be any one solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations. * * *

“This last consideration has often been advanced as a special test for solving a limited class of cases; i. e., the burden of proving a fact is said to be put on the party who presumably has peculiar knowledge enabling him to prove its falsity if it is false. But this consideration furnishes no wox-king rule; if it did, then the plaintiff in an action for defamation charging him to be living in adultery should be required to prove that he is lawfully married. This consideration, after all, merely takes its place among other considerations of fairness and experience as one to be kept in mind in apportioning the burden of proof in a specific case.”

Prom Cyc. 936, we take the following:

“Proof of Negative Foots. — The party whose contention requires proof of a negative fact has the burden of evidence to prove that fact. In deciding however, what quantum of evidence shall be deemed sufficient, the practical limita*777tions on proof imposed by the nature of the subject-matter or the relative situation of the parties will be considered, and the burden of evidence will be sustained by proof which renders probable the existence of the negative fact; circumstantial evidence being sufficient, and nothing in the nature of a demonstration being required.”

To same effect, Jones, Ev. (2d. Ed.) § 179.

Our own reports are full of cases where a litigant has been held to be bound to prove a negative allegation upon which his case depended. Solon Humphreys v. Switzer, 11 La. Ann. 320; Sehneideau v. Pennington, 21 La. Ann. 299; Kuhn v. Bercher, 114 La. 602, 38 South. 468.

“A fact material to plaintiff’s case and susceptible of proof by him he must prove, though negative in character.” Hennen, Dig. p. 497, No. 30, and cases there cited.

Having thus, as we believe, shown that the negative allegation in question is not insusceptible of proof by the state, and that simply because an allegation is negative in character a litigant is not dispensed from proving it, if necessary to his case, we come to the question whether the said allegation which the state failed to prove in this case was necessary to the case of the state.

Holding the affirmative of that question, the decisions are legion. We cite the following, not as exhausting the list, but as being those we have had occasion to examine in the course of the preparation of this opinion: An indictment or information which shows the lapse of more than one year between the date of its filing and the date which it alleges to have been that of the commission of the offense is fatally defective. State v. Freeman, 17 La. Ann. 69; State v. Foster, 7 La. Ann. 256; State v. Bryan, 19 La. Ann. 435; State v. Victor, 36 La. Ann. 978; State v. Joseph, 40 La. Ann. 5, 3 South. 405; State v. Foley, 113 La. 206, 36 South. 940; State v. Pierre, 49 La. Ann. 1159, 22 South. 373; 39 La. Ann. 1085, 3 South. 266; 39 La. Ann. 1108, 3 South. 342; 39 La. Ann, 1112, 3 South. 343; 44 La. Ann. 973, 11 South. 580; 44 La. Ann. 1016, 11 South. 541; 105 La. 641, 30 South. 119; 19 La. Ann. 90; 19 La. Ann. 76; 19 La. Ann. 435; 30 La. Ann. 402, 403; 30 La. Ann. 842 ; 30 La. Ann. 1135; 30 La. Ann. 1167; 48 La. Ann. 736, 19 South. 671; 48 La. Ann. 803, 19 South. 745 ; 48 La. Ann. 1362, 20 South. 911; 17 La. Ann. 69; 32 La. Ann. 844; 23 La. Ann. 433; 113 La. 208, 36 South. 940; 51 La. Ann. 1648, 26 South. 437; 132 La. 749, 61 South. 778; 121 La. 522, 46 South. 614; 49 La. Ann. 1354, 22 South. 617; 49 La. Ann. 594, 21 South. 724; 49 La. Ann. 1210, 22 South. 327; 37 La. Ann. 673; 34 La. Ann. 1073, 1076; 117 La. 469, 41 South. 793; 31 La. Ann. 211. In those cases whose titles are given the defect of the indictment was taken advantage of by motion in arrest of judgment. In the case of State v. Forrest, 23 La. Ann. 433, this court noticed it ex proprio motu.

The rationale of these decisions is that an act or conduct which is not punishable is not a crime or offense within the intendment of the criminal law, and that therefore, in order to set forth a crime — i. e., an act amenable to the criminal law, the indictment or information, when more than a year has expired between the date of its filing and that of the offense, must allege the facts which take the case out of the operation of the hereinabove transcribed section 986, K. g., according to which an offense, save in the expressly excepted cases, is no longer punishable after the expiration of one year from the date of its commission.

[18] We have no so-called common-law crimes in this state. Nothing is a crime which is not made so by express statute. A violation of the moral law, or of the public policy of the state, no matter how gross, is not a crime unless expressly made so by statute. And for being made a crime a penalty must needs be denounced. With*779out a penalty being denounced, all the declarations the Legislature might make on the subject would not render the offense amenable to the criminal laws as administered by the public authorities; all such legislative denunciations and declarations, unaccompanied by the fixing of a penalty, would be mere brutum fulmen. So that in this connection a crime may be defined to be an act or conduct for the commission of which a penalty is denounced by statute. Consequently, when the said section 986, R. S., says that after one year from the commission of an offense the offender shall not be punished, the legal situation is that after the lapse of that period the act or conduct charged against an accused as a crime has ceased to be such. When, therefore, it is made to appear, whether by allegation, by proof, or otherwise, that the act or conduct charged against the accused as a crime antedates by more than a year the filing of the indictment or information in court, the legal situation is that no crime — i. e., no punishable act or conduct — is shown, and that, in order to show.a crime, the prosecution must show that the operation of said section 986, R. S., has been arrested or prevented. Without such a showing the act or conduct charged, being more than a year old, is not punishable, and hence is not a crime, since in this state nothing is a crime which is not expressly made so by statute, and since the only way in which a violation of the moral law or of the public policy of the state can be made a crime is by making it punishable.

As the absence of knowledge on the part of any officer authorized to prosecute was necessary to be proved in order that the more than a year old act charged against the accused should be punishable — in other words, in order that there should be a crime shown — said proof was essential to the case of the state, and therefore had to be made, though negative in character. The host of decisions cited above holding said absence of knowledge to be essential to be alleged in order that a crime should appear are, in principle, in direct opposition to the said Barrow Case; for they hold that the facts arresting or preventing the operation of said section 986, R. S., must be made to appear by the state in order that a crime should be made to appear; and all the authorities on the law of evidence, including all of our own decisions, without a single, exception, are agreed, and it stands to reason, that a litigant must prove the facts essential to the establishment of his case.

Difference of opinion has arisen only when it has come to determine when a negative allegation is impossible of proof (in which case proof is dispensed with) or when a matter is so essentially within the knowledge of the one party and the evidence with regard to it easily to be produced by him, whereas not in the knowledge of the other party and the evidence with regard to it difficult to be produced by him, that the law as a matter of discretion (not as a matter of logic, be it noted, but purely as a matter of discretion wisely to be exercised in the practical administration of justice) will shift the burden of proof from the party on whom it would, as a matter of mere logic, rest. And this is where, as appears to us, the court •erred in this Barrow Case. The court there assumed that the negative in question was “a universal negative,” and therefore impossible of proof, and that the matter was one so evidently within the knowledge of the accused, and not within the knowledge of the prosecution, the evidence on which could be so much more easily produced by the accused than by the state that the state should be dispensed from making the proof of it, however essential such proof was for making out a case against the accused. Thereby the court practically held that the accused had to show that he was not ame*781nable to- the criminal law, not that the state had to show that he was. The court reversed the universally accepted order of things.

We note in passing that the question is not one of the quantum or sufficiency of evidence, but of exemption from the necessity of making any proof at all. If it were the former, this court, in the first place, could not deal with it, for it would then be a question of fact, viz. whether the evidence as to a particular fact was sufficient; and, in the second place, different considerations would came into play.

We may mention also in passing that cases wherein allegations, whether affirmative or negative, have been dispensed from proof because supported, or proved, by some legal presumption, as, for examples, the presumption of sanity, the presumption of innocence, the presumption omnia rite acta, the presumption against fraud, or other evil conduct, have no application whatever in this case, bear no analogy; they being governed by principles entirely inapplicable to this case. In this case, on the contrary, the presumption is in favor of the accused; and the applicable general principle is that in a criminal case the burden of proof never shifts, but continues to rest upon the prosecution throughout the trial.

The contrary of the doctrine of this Barrow Case has been held in a number of decisions of this court; and that an impression con.tra.ry to it has prevailed both with the profession and with this court is evidenced by many dicta which seem to have assumed that the matter was one as to which there could be no difference of opinion. Among others of these decisions and dicta we may cite the following:

In State v. Strong, 39 La. Ann. 1085, 3 South. 267, the question being as to whether or not the commission of the offense had been brought to the attention of an officer within one year, the court said:

“The evidence of prescription * * * was properly submitted to the jury. It was a proper issue for them to try. It was a question of fact appertaining to the merits of the controversy, which could be passed upon by the jury alone.”

In State v. West, 105 La. 639, 30 South. 119, this court held that the question of prescription had to be referred to the jury, and said:

“We are decidedly of the opinion that in order that the jury may find a verdict of guilty, it must clearly appear to the satisfaction of the jury that the plea of prescription is not well founded. This court has decided that everything essential to the punishment must be found by a jury to authorize the court to pass sentence.”

In State v. Snow, 30 La. Ann. 402, this court said:

“The burden is upon the state to rebut the plea.”

In State v. Morrison, 31 La. Ann. 211, this court said:

“In such prosecutions, unless the state shows a previous indictment of the same person for the same offense, found within the year, or cause why such indictment was not found, such as the absconding of the offender or that the commission of the crime had not been known to the authorities before, the conviction will not be sustained.”

In State v. Freeman, 17 La. Ann. 69, this court said:

“These facts [made known to the public officer] should have been charged in the bill of indictment, and proved to the satisfaction of the jury to support the verdict for manslaughter.”

In State v. Foster, 7 La. Ann. 256, the court said:

“It is true it was alleged in opposition to the motion in arrest of judgment that the prisoner had fled from justice. * * * We do not think the court had power to try that fact, but that it should have been distinctly charged in the indictment, and proved on the trial by the oaths of witnesses * * * to the satisfaction of the jury, to support their verdict.”

*783In State v. Bryan, 19 La. Ann. 435, the court said:

“It is not charged in the indictment that the prisoner absconded or fled from justice nor is it alleged that the crime was not discovered and denounced until within a year of the finding of the grand jury; until one or other of these facts is alleged and proved to the satisfaction of a petit jury, the prisoner, in the words of the statute, cannot be punished for larceny. Everything essential to the punishment of the prisoner must be found by a jury of her country, and must appear of record; otherwise, the law does not authorize a court to pass a sentence upon her.”

In State v. Victor, 36 La. Ann. 978, the court said:

“To admit proof on the trial touching the existence of the facts necessary to a suspension of prescription it is esential that these facts must be averred in the indictment.”

The assumption was made here both by counsel and by the court that the proof of the facts required for taking the case from under the operation of section 986, R. S., was incumbent on the state.

In State v. Joseph, 40 La. Ann. 5, 3 South. 405, where the state asked that the case be remanded so as to afford the prosecution an opportunity to amend the indictment so as to make the allegations necessary for arresting the operation of said section 986, R. S., the court said:

“This cannot be done. The law contemplates and requires that amendments to an indictment must be made during the progress of the trial and before the case is submitted to the jury. This is especially manifest whore the amendment consists, as in the instant ease, of the averment of facts to be necessarily passed upon by the jury in making up their verdict.”

In State v. Bilbo, 19 La. Ann. 76, the accused moved to quash on the ground that the indictment contained no allegation of flight or of want of knowledge on the part of an officer. The court said:

“On its face the indictment does not contain everything essential to punishment of the accused, and which must have been found by the jury before sentence could be rendered.”

In State v. Hoffman, 120 La. 951, 45 South. 953, where the question came up again, this court said:

“The defendant does not have to plead prescription in order that the state should have to prove the finding of an indictment within the year. The statute provides that ‘no person shall be prosecuted unless the indictment is found within one year.’ It follows from this that, unless the state proves that an indictment was found within one year, the state does not prove anything against the defendant for which he can be prosecuted. So true is this that without such an allegation in the indictment no crime is shown, and a motion in arrest of judgment is good. State v. Foley, 113 La. 206, 36 South. 940; State v. Pierre, 49 La. Ann. 1159, 22 South. 373; State v. Joseph, 40 La. Ann. 5, 3 South. 405; State v. Victor, 36 La. Ann. 978, etc. It stands to reason that matter which must be alleged in order that a crime should be alleged must bo proved in order that a crime should be proved.”

Article 93 of Stephen’s Digest of the Law of Evidence, reads:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence or nonexistence of facts which he asserts or denies to exist must prove that those facts do or do not exist.”

Therefore, when the prosecution in the instant case, after having fixed the date of the commission of the alleged offense at more than three years before the filing of the information, closed its case without having offered any evidence of a knowledge of the offenses not having come to a public officer of requisite authority until within the year, the accused was entitled to be acquitted; for the case made out by the evidence was one to - which the said' section 986, R. S., applied plainly and clearly.

If we take a purely common sense view of the matter, we reach the same conclusion. That the allegation must be made is decided in the host of cases hereinabove cited, and is *785conceded. That it cannot be made as a matter of inference, or argumentatively, hut must he made as a matter of knowledge, positively, has also to be conceded, since it stands to reason that an accused cannot be brought before the criminal tribunals and put on his defense on inference, but only on positive knowledge. If, for instance, the averment against him were that the district attorney did not know whether or not knowledge of the 'offense had been brought to an officer authorized to investigate or prosecute, but that from the fact that no investigation had in fact been made, or prosecution begun, he inferred that such knowledge had not come, the allegation would most assuredly, be deemed insufficient. Now, if the allegation is made from positive knowledge, why may not the facts upon which the knowledge is based be proved? In the present case, for instance, the allegation is made that the commission of the offense in question “was not made known to any officer having the authority to begin a public prosecution thereof until the 29th day of January, 1919.” Did the district attorney make this allegation because he knew it to be true, or did he make it not knowing whether it wds true or false, thereby running the risk of its being made by him falsely against the prisoner? If he had knowledge of its truth, why could he not produce the evidence of the facts upon which such knowledge was based? If, on the other hand, he made this allegation without knowledge of its truth, incurring the risk of making against a prisoner a false statement of fact, how, we ask, does such conduct accord with the morality of our law, and are the trial court and this court to participate in that line of conduct by sanctioning it?

[19] On this rehearing the state makes the point that after verdict it was too late for the accused to seek to take advantage of the absence of this evidence; that the useful time and mode of taking advantage of it was before verdict by the request of a special charge to the jury.

We cannot agree with that view. If an accused has been condemned without evidence, there is nothing for it but to set aside the verdict. The question of absence of evidence must not be confounded with that of insufficiency of evidence. The one involves an appreciation of the law; the other of the evidence. The one is cognizable by this court; the other not. If an accused has been condemned without any evidence at all having been adduced against him, on the assumption, let us suppose, that the allegations of the indictment must be taken for true until disproved, the plain duty of the court is to set the verdict aside; and the question involved is one purely of law, viz. whether an accused can be condemned without any evidence having been adduced against him; and, if the trial court fails in that duty, the appellate court must perform it. This is perfectly plain where no evidence at all has been adduced, or, in other words, where no part of the case, or none of the elements constituting the case, has been proved; but in principle there is. no difference between such a case and a case like the present, where there has been a total absence of evidence, not upon all the essential elements of the case, but only upon one of them. This will be made plain by an illustration. Let us suppose that in a ease of murder all the essentials of the case have been proved except the killing of a human being; or, to take a possible or less exaggerated illustration, let us suppose that in a case of burglary no evidence as to a breaking has been adduced; would it not be the plain duty of the trial court, or of the appellate court, to set aside the verdict whenever its attention was attracted to the situation? Plainly it would be. And the situation in the present case corresponds exactly with *787this last illustration. On an essential element in the ease of the prosecution no evidence at all has been adduced; and therefore the accused has been condemned without any evidence having been adduced. He has been condemned on the assumption that it was for him to disprove the allegations of the information, not for the state to prove them.

Our former judgment in this case is therefore reinstated, and made the judgment of the court.

O’NIELL, J., is of the opinion that the plea of “prescription,” as it is called in R. S. 986, which is not “pleadable” against certain specified crimes, should be specially pleaded by the defendant and tried and decided by the judge, and that on the trial thereof the burden of proof should be upon the defendant urging the plea.