State v. Colvin , 284 Mo. 195 ( 1920 )

The defendant was indicted in the Criminal Court of Jackson County on the 18th day of February, 1916, upon a charge of having obtained money from one William Reed by false pretense; this indictment was nollied by the State on the 17th day of May, 1918.

At the April term of said court, 1918, the grand jury returned another indictment against defendant and after reciting therein the filing of the first indictment, proceeds as follows: "And the grand jurors, aforesaid, upon their oath aforesaid, further present and charge that said Francis E. Colvin, whose Christian name in full is to these grand jurors unknown, late of the county aforesaid, on the ____ day of January, 1913, contriving, designing and intending to cheat and defraud the said William M. Reed of his money and personal property, did then and there unlawfully, feloniously, and designedly with the felonious intent then and there to cheat and defraud him, the said William M. Reed, apply to and request the said William M. Reed to trade, sell, transfer and deliver to him, the said Francis E. Colvin, a certain first-mortgage real-estate note, dated August 20, 1912, and signed by Ida B. Wilson, and being of the value of twelve hundred and fifty dollars, the personal property of William M. Reed (a more detailed description of said note being to these grand jurors unknown), for and in exchange of a certain first mortgage real-estate bond-note of the purported value of fifteen hundred dollars, which said last named note, he, the said Francis E. Colvin, then and there had in his possession and under his control, claiming to be the holder and legal owner thereof and then and there had a lawful right and authority to negotiate said note and pass the title thereto to the said William M. Reed." The indictment then proceeds to a conclusion.

I. "No person shall be tried, prosecuted or punished for any felony, other than as specified in the next preceding section, [which relates to capital and life imprisonment cases], unless an indictment be found or information be filed for such offense within three years after the commission of suchLimitations. offense, except indictments or information for bribery or for corruption in office may be prosecuted if found or filed within five years after the commission of the offense." [Section 4945, R.S. 1909.]

The three-years limitation in said section is the one having application to the case in hand.

If the crime was committed on the — day of January, 1913, as alleged in the second indictment, and the first indictment was returned the 8th day of February, 1916, as alleged therein, then it is plain that from the date of the commission of the crime to the filing of said information three years, one month and seven days had elapsed before the first indictment was found.

II. The indictment upon which defendant was tried and convicted is bad because it shows on its face that more than three years had elapsed since the date of the commission of thePleading. crime and before the defendant was indicted.

Time may not be of the essence of the offense, as is true in many cases, but when the month and year when the crime was committed is pleaded in the indictment it is certainly sufficient to mark the date when the Statute of Limitation began to run, which is from the date of the commission of the crime, unless some act upon the part of defendant interdicts its progress.

The indictment contains no averment of fact or facts which gives the State any plausible or legal reason why the filing of the indictment was so long delayed.

Offenses of the kind here charged, as above pointed out, are barred in three years. And it is held by this court that the Statute of Limitations should be liberally construed in favor of the accused. [State v. Snyder, 182 Mo. 462.] The State must plead and prove the exceptions necessary to remove the bar of the Statute of Limitations. [State v. Snyder, supra; State v. Meyers,68 Mo. 266; State v. Hopper, 21 Mo. App. 510; Wharton's Cr. P. and P. (9 Ed.) sec. 318; Blackman v. Commonwealth, 124 Pa. 578.]

In the Meyers case, supra, l.c. 268, the court said: "The better practice in such cases is to allege the true time of the commission of the offense charged, and set forth the facts which avoid the bar of the Statutes of Limitations as an excuse for not having preferred the indictment sooner."

In the Snyder case, supra, at page 498, it is held as follows: "On the other hand it has been ruled in many states that the prosecutor should allege the true date of the commission of the offense, and then set forth the facts which avoid the bar of the Statute of Limitations as an excuse for not having preferred the indictment sooner, and this was announced by this court as the better rule in State v. Meyers, 68 Mo. 266, and by the Supreme Court of Pennsylvania in Blackman v. Com., 124 Pa. 578; Wharton's Cr. Pl. and Pr. (9 Ed.) sec. 318 and cases cited in note 2. Accepting, then, the law as ruled in State v. Meyers,68 Mo. 266, the circuit attorney should have pleaded the exceptions which were necessary to remove the bar of the Statute of Limitation."

The other authorities cited above announce the same rule.

III. The view we take of the case renders unnecessary a discussion of the other points raised.

In the light of the foregoing authorities we are compelled, to hold that "the indictment is bad in that it fails to set forth the fact or facts therein which avoid the bar of the Statute of Limitations as an excuse for not having preferred the indictment sooner."

We, therefore, reverse and remand the case to the end that the prosecuting attorney may, if he is so advised, again present the facts of the case to a grand jury where if they see fit another indictment may be returned against defendant. It is so ordered.White, C., concurs; Railey, C., not sitting.