Taylor v. State , 1925 Ga. LEXIS 150 ( 1925 )

Hines, J.

At the May term, 1922, of Wilkes superior court the grand jury returned a bill of indictment against Taylor, charging him with being a non-resident dealer in securities, and as such having, on September 24, 1920, sold to one Willingham, and with intent to defraud Willingham, certain bonds of the Cumberland Oil & Refining Company, without first having secured from the Georgia Securities Commission a license authorizing him to sell said bonds, as required by the act known as the Georgia securities law. Acts 1920, p. 250. This indictment was nol. pros’d for “an informality.” A second indictment was returned against Taylor within six months, from the date of the quashing of .¡the first-mentioned indictment. In this indictment the defendant was charged with selling, without license, to Willingham the same bonds which he was charged with selling to him in the first indictment, and in addition was charged with selling to him, illegally and without such license, certain stock of the same company. The second indictment disclosed that this offense was committed more than two years before the indictment was returned, and sought to avoid the bar of the statute of limitations by alleging that the former indictment against the defendant for the same criminal act had been returned within two years from the date of the commission of the offense, that the former indictment had been nol. pros’d for “an informality” in the indictment, and that the second indictment had been returned within six months from the date of the quashing of the first indictment. The second indictment alleged that the bonds, with the illegal sale of which the defendant was charged in the first indictment, were payable within one year. To the second indictment the accused filed a timely special plea in bar, setting up the facts above stated. The trial court struck this plea. The Court of Appeals wishes to know if the striking of this plea was error.

The defendant is charged with a misdemeanor. Misdemeanor indictments must be returned within two years after the commission of the offense, and at no time thereafter; but “if the indictment is found within the time limited, and for any informality shall be quashed or nol. pros’d, a new indictment may be found and prosecuted within six months from the time the first is quashed, or nol. pros’d.” Penal Code (1910), § 30.

“Commercial paper or other evidence of indebtedness running not more than twelve months from the date of issue” is included in securities in “Class A” as defined by the Georgia securities law. Acts 1920, pp. 250, 253, 254, Park’s Code (Supp. 1922), § 2909 (r). The sale of the securities embraced in this class is not subject to the provisions of this act. íd. In the first indict-’ ment the defendant was charged with selling certain bonds of the Cumberland Oil & Kefining Company. These bonds were commercial paper or evidences of indebtedness of said issuing company. They were payable in one jrear from date of issue. Consequently their sale did not fall within the provisions of this act. Ergo the first indictment set out no offense committed by the defendant.

As the first indictment set out no offense and for this reason was void, would a second indictment which contained the allegations embraced in the first indictment, and in addition thereto charged other facts which constituted an offense under this statute, but which disclosed that the offerifee was committed more than two years before the second indictment was returned, have the effect of avoiding the bar of the statute of limitations by alleging that the first indictment was for the same criminal act, that it had been returned within' two years of the date of the commission of the offense, but had been nol. pros’d for “an informality” in the indictment, and that the second indictment had been returned within six months from the date of the quashing of the first indictment ? In other words, can an indictment which sets out no offense be the foundation of the return of a second indictment under the provisions of section 30 of-the Penal Code? "We are of the opinion that such an indictment will not prevent the running of the statute of limitations in favor of the defendant. This provision of the Penal Code applies when an indictment sets out some offense and which is not actually lacking in substance, but is only lacking in formality. When it lacks due form and is quashed or nol. pros’d for lack of such form, a new indictment may be found and prosecuted within six months from the time of the quashing of the first indictment, although at the return of the second indictment the offense is barred by the statute of limitations, provided the first indictment was preferred within the statute of limitations. This question has not heretofore been before this court for decision. There are decisions of this court which shed light upon this question. These decisions are based upon the construction of section 4381 of the Civil Code (1910), which declares: “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case.” In Gray v. Hodge, 50 Ga. 262, this court held that a suit in a court having no jurisdiction was a nullity and could not be renewed under this section. In Ferguson v. New Manchester &c. Co., 51 Ga. 609, this court held that where service of a declaration filed in the clerk’s office was not perfected as required by law, there was no suit which could be renewed under the provisions of this section of the Civil Code. This ruling was followed in Mc-Clendon v. Hernando Phos. Co., 100 Ga. 219 (28 S. E. 152). In Edwards v. Ross, 58 Ga. 147, this court held that “A void thing is not a 'suit' or 'case’ within the meaning of” the above section-of the Civil Code. In Williamson v. Wardlaw, 46 Ga. 126, this court held, that where suits upon notes were declared by this court to be void, and within six months from the judgment so declaring them void the notes were sued on again, these facts did not prevent the statutory bar from attaching. In Hamilton v. Phenix Ins. Co., 111 Ga. 875 (36 S. E. 960), and in Hill v. State, 115 Ga. 833 (42 S. E. 286), it was held that where an application for certiorari was void it could not be renewed under this section of the Code. On the distinction between void and voidable suits, see Atlanta &c. R. Co. v. Wilson, 119 Ga. 781 (47 S. E. 366), and Lamb v. Howard, 150 Ga. 12 (102 S. E. 436). In Denny v. Gardner, 152 Ga. 602 (110 S. E. 891), it was held that “A void suit will not toll the statute of limitations.” By parity of reasoning, we reach the conclusion that a void indictment will not toll the statute of limitations.

The second indictment charged the defendant with a new,' separate, and distinct offense. For this reason the former indictment, if it had set out a penal offense, would not have the effect of avoiding the statute of limitations as to the offense set out in the second indictment. Cox v. Strickland, 120 Ga. 104 (5) (47 S. E. 912, 1 Ann. Cas. 870); Southern Express Co. v. Sinclair, 135 Ga. 155 (68 S. E. 1113). While the cases cited are civil cases and deal with suits renewed under section 4381 of the Civil Code (1910), the reasoning of these cases is applicable to the renewal of indictments under section 30 of the Penal Code (1910).

Applying the principles above ruled, we think that the trial court erred in striking the special plea of the defendant, and that the question propounded by the Court of Appeals should be answered accordingly.

All the Justices concur, Russell, G. J., specially.