The opinion
BARHAM, Justice
(dissenting).
On November 18, 1963, the defendant was indicted for murder. Over two years after-wards, on January 17, 1966, we reversed his conviction and ordered a new trial. The new trial was begun more than three years later, on February 6, 1969.
Statutes of limitation for the trial of criminal offenses are for the protection of those charged with crimes. They are positive and strict requirements of the maximum time afforded the State for commencement of trial after prosecution is instituted, and they should be construed in this light. Here the State waited almost six years after the occurrence of the offense, and more than three years after our remand and order for new trial, before bringing this defendant to trial. Not only does such a delay appear inexcusable; it is in my view forbidden by positive statutory law.
Louisiana Code of Crimial Procedure, Article S82 provides:
“When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.”
Article 578 provides that trial in capital cases must commence within three years from the date of institution of prosecution. Thus under the requirements of Article 582 one year is the period of limitation for retrial unless at the time of the order for new trial the remaining time of the original period of limitation exceeds the one year. Obviously the time limitation for new trials should not, and the Legislature has provided that it does not, deprive the State of the original limitation period if that period would provide a longer delay than the one year. The determination of the period of limitation for the retrial of this defendant was established at the moment the order for new trial became final. At that time, the one year from order of new trial provided the longer period of limitation since only approximately nine months remained of the three-year limitation. Since the period of limitation was established when our judgment for new trial was entered, an occurrence (escape) thereafter could not change the period of limitation; it could only interrupt the period which had attached.
Having concluded that the statute of limitation here established a one-year deadline for new trial, I need not concern myself with the question of whether there was interruption of that period of limitation, for the year has tolled regardless of the alleged interruption. For these reasons I respectfully dissent.
Rehearing denied.
SUMMERS, J., concurs.
BARHAM, j., dissents from the refusal of a rehearing.