Donald v. State , 165 Tex. Crim. 252 ( 1957 )

ON MOTION FOR REHEARING

MORRISON, Presiding Judge.

Upon further study, we find that the question here presented is not one of first impression. In Hickman v. State, 44 Texas Crim. Rep. 533, 72 S.W. 587, Presiding Judge Davidson, speaking for the court in 1903, in reversing the conviction, said:

“The indictment charges that appellant, on the 2d day of July, 1902 forged the following instrument:

“ ‘Wichita Falls, Texas, July 2, 1892. No______________

“ ‘The Panhandle National Bank of Wichita Falls,

“ ‘Pay to R. H. Smith or Bearer Seven________Dollars $7.00.

“ ‘Boney Mclntire.’

“The indictment contains neither explanation averments nor inuendo allegations. Motion to quash was based, first, upon the ground that the instrument itself shows that the offense was barred by the statute of limitations when presented by the grand jury; second, * * *. We believe both points are well taken. The instrument purports to have been executed on July 2, 1892. The indictment was preferred by the grand jury on October 29, 1902, something over 10 years after the purported execution. Prosecution for forgery is barred under our statute in 10 years.”

It is interesting to note from an annotation found in 99 A.L.R., page 153, that the Hickman case is cited as placing Texas in line with the great weight of authority which holds that it is incumbent upon the state in the accusation to allege the matters which toll the statute of limitations.

Forty years later, in Anderson v. State, 146 Texas Cr. Rep. 175, 172 S.W. 2d 339, this court said:

“ * * * * If appellant had been charged and prosecuted for the offense of forgery and it had appeared from the face of the indictment that the offense was committed more than ten years prior to the return of the indictment, then, no doubt, the court would have sustained the m-otion to quash * * *.”

See, also, Dinklage v. State, 135 Texas Cr. Rep. 10, 117 S.W. 2d 111, where this court said:

“ * * * * It therefore follows that an indictment found on October 21, 1937, charging the offense of an accomplice to burglary committed in August 1933, comes too late, and shows upon its face to be barred by the statute of limitation.”

The Supreme Court of Minnesota, in State v. Tupa, 260 N.W. 875, in reversing a conviction where the accused had plead guilty because the indictment on its face showed that the offense was barred by the statute of limitations and failed to contain allegations showing that the statute had not run, posed this pertinent question:

“Civil liability, as we have seen, could not be imposed upon defendant where, as here, the face of the accusation clearly establishes that the cause has been put to rest by a valid statute of repose. Is it fair, logical, or reasonable to hold that one accused of crime should be treated with less consideration than one who uses the same means or avenue of escape from a contractual obligation, or from liability for a tort where perhaps •the tort itself involved a criminal act?”

The Supreme Court of California, in People v. McGee, 36 P. 2d 373, reversed a conviction where the accused had plead guilty and gave the following reasons for its holdings:

“ * * * the statute (referring to a statute similar to our Article 396, V.A.C.C.P., set forth in the original opinion) is jurisdictional, and that an indictment or information which shows on its face that the prosecution is barred by limitations fails to state a public offense. The point may therefore be raised at any time, before or after judgment.

“* * * In criminal cases, the state, through its legislature, has declared that it will not prosecute crimes after the period has run, and hence has limited the power of the courts to proceed in the matter. See People v. Hoffman, supra; State v. Bilboa, 38 Idaho, 92, 213 P. 1025, 222 P. 785. It follows that where the pleading of the state shows that the period of the statute of limitations has run, and nothing is alleged to take the case out of the statute, for example, that the defendant has been absent from the state, the power to proceed in the case is gone.”

It is insisted that Hill v. State, 157 Texas Cr. Rep. 369, 171 S.W. 2d 880, supports the state’s position that the indictment is sufficient. There is nothing on the face of the opinion in that case which sustains such contention, and the same is therefore not authoritative. If a conclusion contrary to the statute and the authorities cited in this and the original opinion may be drawn from an independent examination of the record in that case, then what we have here said is to be controlling.

Remaining convinced that we properly disposed of this matter originally, the state’s motion for rehearing is overruled.