The defendant appeals from a j udgment condemning him to thirteen years .imprisonment at hard labor in the Penitentiary.
Wo find from tho record that tho defendant was proceeded against twice by information and twice by indictment for the same offense, charged to be the burglarious breaking into tho dwelling-house of ono Joseph Mo'ise, with intent to murder him and steal his goods and chattels. The accused was convicted under the information filed against him, on tho fifth of December, 1875, at tho regular term of the district court of tlio parish of Pointe Coupee. He ha'd been twice before put on trial on the said charge. A motion was made to quash and set aside the information last filed (Decomber 5, 1875), on the following grounds:
First — That there are material erasures and interlineations therein, without any written statement that they were made prior to signing and filing tlio same.
Second — That the State can not prosecute by information for tho offonso charged, and that he can only be hold to plead to such a charge-if made by a grand jury.
Third — That the information charges him with tho same crime with which he has boon twice before charged in this court, to wit, “ burglary,”' once by indictment filed on tho eleventh December, 1874, and once by information filed thirtieth July, 1875. That the State can not detain him *451in custody from time to time on successive reiterated charges for the same offense.
Fourth — That tho information filed at this term, to wit, on the seventh December, 1875, shows that defendant has once been tried, viz: at tho December term, 1874, now attempted to bo revived against him.
Should tho above motion to quash bo overruled, tho defendant pleads in bar to this prosecution: First — Autrefois acquit. Second — Prescription.
The motion and picas in bar were overruled, and a bill of exceptions taken to the ruling.
A formal plea of prescription was filed interposing and pleading in bar of the prosecution prescription and the statute of limitations of one year since tho alleged discovery of the offense with which he is charged by the district attorney and other public authorities, and therefore that said prosecution can not be held or maintained by tho State, and he moved to have tho same dismissed with all costs in this behalf expended.
The plea of prescription must prevail. By the bill of exceptions found in the record it appears to have been admitted on tho part of the State that the accused was taken into legal custody for tho offense charged prior to the first of July, 1874, and that ho has been in prison ever since, more than one-year having intervened between that date and the time of filing tho information on the seventh of December, 1875.
It is therefore ordered that the judgment appealed from bo annulled, avoided, and reversed. It is further ordered that tho prosecution against the defendant bo dismissed.