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SPECIAL INTERPRETATIONS PERTAINING TO THE
STATUTES OF LIMITATIONS OF CRIMINAL PROSECUTIONS.
$ 257. At common law -(In England).- There is no rule of the common law limiting the time within which a criminal prosecution must be commenced. Nor, in England, have there ever been any general statutes of limitations of criminal causes.? “So that,” says Chitty,3 « instances have frequently occurred in which parties have been convicted and punished many years after the crime had been forgotten,"4— a practice, however, not always tolerated by the courts. The prosecution of some forms of high treason was early — by 7 and 8 Will. 3, ch. 3, $5— limited to three years; and there are statutes of limitations for poaching,s and for a few other specific offenses.? For penal actions also there are statutes of limitations. In contrast to this lack of English legislation,
i Dover v. Maestaer, 5 Esp. 92; explanation of the delay could be Hyde v. Partridge, 3 Salk. 227, 228. given, and Alderson, B., refused to
2 Reg. v. Hull, 2 Fost. & F. 16. submit the question of guilt to the 31 Chit. Crim. Law, 160.
jury and ordered an acquittal. And 42 Hale, P. C. 158; Burn, Just., In- see P. v. Lohman, 2 Barb. 216. dictment, III. Lieut.-Col. Wall was 6 Reg. v. Parker, Leigh & C. 459, 9 tried, convicted and executed for a Cox, C. C. 475; Reg. v. Brooks, 1 Den. murder committed twenty years be- C. C. 217; Reg. v. Hull, supra. fore. 4 Bl. Com. (15th ed.) 305, note 2. ? Archb. Crim. Pl. & Ev. (19th ed.)
o In Reg. v. Robins, 1 Cox, C. C. 114, 79; Reg. v. Thompson, 16 Q. B. 832. A. D. 1844, which was an odious pros- 831 Eliz., ch. 5, § 5, followed by ecution for bestiality, it appeared some others; Dyer v. Best, Law R. 1 that the prosecuting witness had not Ex. 152; Cobbett v. Warner, 1 H. & complained to a magistrate for nearly N. 388; Maugham v. Walker, Peake, two years after the fact was alleged 163; Attorney-General v. Hall, 11 to have transpired, though he said Price, 760. he had mentioned it otherwise. No
§ 258, With us. In most of our states there are statutes variously limiting the times for commencing the several sorts of criminal prosecution. And there are, as in England, statutes of limitations for penal actions, the same as for others of the civil class. The limiting statutes are not in uniform words, but the interpretations of most of them are well defined.
$ 258a. Criminal and civil, contrasted –(Constitutional). The rules for interpreting civil statutes of limitations are not in all particulars applicable to criminal. Especially are not those by which the constitutional validity of these statutes is tested. What flows from this distinction will appear as we proceed.
$ 259. Strict or liberal.- Whether the construction of a civil statute of limitations is to be strict or liberal,- a question on which there is no absolute barmony of opinion,' — that of a criminal one is plainly, in principle, to be liberal; because it is a provision in favor of the accused, and we have seen that this sort of provision is to receive a highly liberal construction.” And such is the doctrine -- at least, the better doctrine - of the courts. Thus,
Computation ojo time-(“Two years "').— There being different methods of reckoning time, by one of which a given period will be a day longer than by another, the Texas court, applying the rule of a liberal rendering in favor of defendants, held that where the statutory period was two years, and an offense was committed on the first day of January, 1855, an
1S. v. Rundlett, 33 N. H. 70; Ray- & B. 283, 292–294; Hart's Appeal, 32 mond v. U. S., 14 Blatch. 51; Adams Conn. 520; Bedell v.Janney, 4 Gilman, v. Woods, 2 Cranch, 336; Stimpson 193; Forster v. Cumberland Valley v. Pond, 2 Curt. C. C. 502; Parsons v. R. R. Co., 23 Pa. St. 371; Garland v. Hunter, 2 Sumner, 419; Walker v. Scott, 15 La. An. 143; Elder v. BradChapman, 22 Ala. 116; [Roe v. Board ley, 2 Sneed, 247; Gautier v. Frank. of Com’rs of Elk Co., 1 Kan. Ap. lin, 1 Tex. 732; Bell v. Morrison, 1 219, 40 Pac. R. 1082; Weisenborn v. Pet. 351, 360; Willison v. Watkins, P., 53 Ill. Ap. 32; Borough of Walling. 3 Pet. 43, 54; McCluny v. Silliman, 3 ford v. Hall, 64 Conn. 426, 30 Atl. R. Pet. 270, 278, 279. 47; Com. v. Equitable Life Assurance 3 Ante, SS 196, 199. Society, 100 Ky. 341, 38 S. W. R. 491; 4 P. v. Lord, 12 Hun, 282; White v. Merrill v. Board of Com’rs of Ness S., 4 Tex. Ap. 488; (Peterson v. CurCo., 7 Kan. Ap. 717, 52 Pac. R. 109.] rier, 62 Ill. Ap. 163; S. v. Wheeler, 23
2 Tolson v. Kaye, 3 Brod. & B. 217, Nov. 143, 44 Pac. R. 430.] 222; Pellatt v. Ferrars, 2 B. & P. 542, 5 Ante, S$ 105–111. 547; Curlewis v. Mornington, 7 Ellis
indictment on the first day of January, 1857, was too late,' a result contrary to what would have followed the other method of computation. Still,
$ 260. Analogous offenses. The interpretation is not made so liberal as to protect from prosecution offenses merely analogous to those specified in the statute. It extends only to those within its words. For example,
Conspiracies.— An enactment limiting the time for proceeding against an offense named does not include, by construction, a conspiracy to commit the offense. And it is not otherwise though the limitation is in an exception of the statute. Thus, in North Carolina, “in all trespasses and other misdemeanors, except the offenses of perjury, forgery, malicious mischief, and deceit, the prosecution shall commence within two years after the commission;” and a conspiracy to cheat and defraud was held not to fall within the exception. “This is a distinct offense from that of cheating or deceiving."" On the like principle of construction,
“Penalty.”— Where, in South Carolina, it was provided that in every case of “penalty, fine, or forfeiture” incurred, “no information, action, or prosecution shall be commenced or carried on against the offender, for and in respect to such fine, penalty, or forfeiture, unless within six months,” the word “penalty” was held to refer only to a fine or forfeiture of
18. v. Asbury, 26 Tex. 82. See S. 63. v. Christianbury, Busbee, 46, 47. v. Mason, 66 N. C. 636; P. v. New (Nor is assault with intent to commit York Central P. R. Co., 28 Barb. 284; an offense included in the bar against ante, $ 218; .[Peterson v. Georgia R. R. that offense. Moore v. S., 20 Tex. Ap. etc. Co., 97 Ga. 798, 25 S. E. R. 370.] 275; Fuecher v. S., 33 Tex. Cr. R. 22,
2 Smith v. Cassity, 9 B. Monr. 192. 24 S. W. R. 292. But in North Caro[48 Am. D. 420;] Owen v. Slatter, 26 lina the statutory bar against deceit Ala. 547, (62 Am. D. 745.] In Pres- was held to include seduction under brey v. Williams, 15 Mass. 193, a civil promise of marriage. S. v. Crowell, case, the computation was as in the 116 N. C. 1052, 21 S. E. R. 502; Sheptext. And see McGraw v. Walker, ler v. S., 114 Ind. 194, 16 N. E. R. 521. 2 Hilton, 404; Elder v. Bradley, 2 Though an offense punishable by imSneed, 247; [Savage v. S., 18 Fla. 970.] prisonment in the state penitentiary 3 See post, S 261d.
may be visited with a lighter pun Reg. v. Thompson, 16 Q. B. 832, 4 ishment, it is none the less a felony, Eng. L. & Eq. 287. This case is not and the statute of limitations for very strong to the proposition in the felonies applies. S. v. Reeves, 97 Mo. text, but it seems sufficiently to sus- 668, 10 S. W. R. 841, 10 Am. St. R tain it. See also U. S. v. Hirsch, 100 349.] U. S. 33.
money; and so this statute does not bar the prosecution for an offense the punishment whereof is corporal,- as, for instance, imprisonment or death,- or, as to the imprisonment, where it is fine and imprisonment."
$ 260a. When statute begins to run.- All statutes of limitations, criminal and civil, begin to run only when there is a matured right of action or prosecution, and there are in existence the needful parties. Hence,
In homicide.- Although the offense of felonious homicide is, by the better opinion, committed by the blow which results in death, yet, as there can be no prosecution for it until the death has taken place, the statute of limitations does not begin to run against it till then. Again,
In polygamy.- Where the offense of polygamy consists of marrying a second time, the former husband or wife being alive, the statute of limitations begins to run against it from the time of such second marriage. But obviously where it is made a crime analogous to polygamy for parties to cohabit under a polygamous marriage, the statute does not begin to run to-day against a cohabitation which will take place a year hence. So,
In nuisance.— While the statute will run against the erection of a nuisance from the day when it is erected, the offense of its continuance is not thus barred.11
1 S. v. Taylor, 2 McCord, 483; 8. v. 147; Murray v. East India Co., 5 B. Thomas, 8 Rich. 295; S. v. Free, 2 & Ald. 204, 213; Douglas v. Forrest, Hill (S. C.), 628; S. v. Fields, 2 Bailey, 4 Bing. 686; Johnson v. Wren, 3 Stew. 554. And see Tobacco-pipe Makers 172; Clark v. Hardiman, 2 Leigh, 347; v. Loder, 16 Q. B. 765.
Hobart v. Connecticut Turnpike, 15 2 Helps v. Winterbottom, 2 B. & Conn. 145. Ad. 431; Reynolds v. Doyle, 2 Scott, 4 Crim. Law, I, SS 113-115 and note; N. R. 45 1 Man. & G. 753; Montgom- Crim. Pro., I, SS 50-52. ery v. Hernandez, 12 Wheat. 129; • S. v. Taylor, 31 La. An. 851; Rey. Fenton v. Emblers, 1 W. Bl. 353, 354; nolds v. S., 1 Kelly, 222. Harris v. Osbourn, 2 Cromp. & M. 6 Post, SS 586-588. 629; Phillips v. Broadley, 9 Q. B. 744; 7 Gise v Com., 8 Pa. St. 428; Com. Mardis v. Shackleford, 4 Ala. 493; v. McNerny, 10 Phila. 206; Scoggins Roberts v. Armstrong, 1 Bush, 263, v. 8., 32 Ark. 205. [89 Am. D. 624; Ryan v. Caldwell 8 Post, 588; Finney v. S., 3 Head, (Ky.), 50 S. W. R. 966; Hocutt v. Wil- 544. mington, etc. R. R. Co., 124 N. C. 214, 9 Com. v. Grise, 11 Phila. 655; S. v. 32 S. E. R. 681; Poe v. Dixon, 60 Sloan, 55 Iowa, 217. Ohio St. 124, 54 N. E. R. 86, 71 Am. 10 Henline v. P., 81 Ill. 269. St. R. 713.)
11 Nashville, etc. R. R. Co. v. S., 1 Bax. • Metcalf v. Grover, 55 Miss. 145, 55; (S. v. Long, 94 N. C. 896; Peck v.
$ 261. Commencement of prosecution.— By some of the statutes the indictment must be found, and by others the prosecution commenced, within the statutory period. For example, the words of 9 Geo. 4, ch. 69, § 4, as to poaching, are: “The prosecution
shall be commenced within twelve calendar months after the commission of such offense.” And Pollock, C. B., ruled in a jury case that the issuing of the warrant of arrest does not constitute a commencement of prosecution." This is a negative holding; and in the same negative way it is laid down that the finding of an indictment is not essential to the commencement of prosecution, but it may have been begun by steps before. In a case at the assizes the same learned judge deemed the warrant of commitment to show, in the particular instance, “the commencement of the prosecution. The first proceeding was to take the party before the magistrate, and he grants his warrant of commitment.” 3 And from a subsequent case before all the English judges it may perhaps be inferred that, if there is a regular information or complaint in writing before a magistrate, and thereupon he issues his war. rant, and the proceedings go on in the usual way, the prosecution is commenced by the complaint and warrant; but this was not said, and the point decided was that, where evidence of the warrant only was produced, not enough was shown to take away the statutory bar. Undoubtedly this question will deMichigan City, 149 Ind. 670, 49 N. E. bolt, 21 Law Times (N. S.), 263; Rex R. 800; Cohen v. Bellenout (Va.), 32 v. Phillips, Russ. & Ry. 369. The case S. E. R. 455. As to commencement of Rex v. Willace, 1 East, P. C. 186, is of the statute in seduction under as follows: "Stat. 8 and 9 Will. 3, promise of marriage, see P. v. Nelson, ch. 26, § 9, provides that no prosecu153 N. Y. 90, 46 N. E. R. 1010, 60 Am. tion shall be made for any offense St. R. 592. Embezzlement of ward's against that act, unless such prosefunds, Colvin v. S., 127 Ind. 403, 26 cution be commenced within three N. E. R. 888. Embezzlement by months next after such offense comcounty officer, S. v. Mason, 108 Ind. mitted. In Willace's Case, who was 48, 8 N. E. R. 716. Conspiracy, Ochs indicted for high treason in coloring v. P., 124 III. 399, 16 N. E. R. 662; U. S. a piece of base coin resembling a v. Owen, 32 Fed. R. 534; P. 1. Willis, shilling with materials producing 52 N. Y. S. 808, 23 Misc. R. 568.] the color of silver, the evidence was
1 Reg. v. Hull, 2 Fost. & F. 16. that on the 5th May, 1797, search ? Reg. v. Brooks, 1 Den. C. C. 217, 2 was made in the prisoner's lodgings Car. & K. 402, 2 Cox, C. C. 436. in consequence of information, and
3 Reg. v. Austin, 1 Car. & K. 621. upon the party's entering the room
* Reg. v. Parker, Leigh & C. 459, 9 the prisoner immediately ran away. Cox, C. C. 475. And see Reg. v. Cas. There was found in his room a quan.