Commonwealth v. Duffy

Mr. Justice Green

delivered the opinion of the court, January 3d 1881.

We are of opinion that under the 77th section of the Criminal Procedure Act of 31st March 1860, the limitation of prosecutions for forgery as a misdemeanor is two years and not five. It is true the first clause of the section enumerates “ forgery” as one of the offences subject to the five years’ limitation, and were there not other considerations affecting the question we should hold that the limitation of five years applied to all forgeries. But .the concluding clause of the section positively, enacts that all indictments and prosecutions “for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such * * * misdemeanor shall have been committed.” Of course the legislature did not intend to say that there should be two different periods of limitation for the same offence in the same act. As certain forgeries are felonies, and others are misdemeanors, the reasonable construction of the act is that the former are barred only after five years and the latter after two year's. The legislature must have supposed that this was the true interpretation of the Act of 1860, because in 1877 they enacted a new law, making a uniform limitation of five years in all cases of forgery, “whether the same be misdemeanor or felony.” They thus recognised the distinction between the two kinds of forgery, and necessarily proceeded upon the assumption that they were not subject to the same limitation, prior to the passage of the latter act. The act would have been useless upon any other theory. If the limitation was five years before, there was no occasion to pass an act to say that, thereafter, it should be five years.

The next and most important question is, as to the effect of the Act of 1877 upon a case where the forgery was a misdemeanor, and the two years’ limitation had not expired at the time of its passage. Such is the present case, and it presents this exact question. The learned judge of the court below held that to apply the law to a case in which the offence had been previously committed would make it retro-active, and, as it related to a criminal subject matter it would be an ex post facto law, and therefore void under both the federal and state Constitutions. If this view of the case were correct, the conclusion of the court below, that, the case was subject only to the two years’ limitation, would be right, and we should be obliged to affirm the judgment. But we are quite unable to agree with the reasoning of the learned judge on this subject, and have therefore reached a different conclusion. The language of the Act of 1877 is as follows: “ That hereafter the offence of forgery, whether the same be a misdemeanor or a felony, shall not be held barred by the Statute of Limitation when the indictment therefor shall have been brought or exhibited within five years next after the offence shall have been committed. It is true that this language, as well as the title of the act, are somewhat indicative of an intent that the Act of 1877 should be regarded as declaratory of the meaning of the Act of 1860, but we prefer to rest the decision of the case upon a larger and broader ground. It is contended that the word “hereafter,” in the connection in which it occurs, imports that the act was only intended to apply to cases in which the offence was committed after the passage of the act. We cannot so read it. The word “hereafter” in' the act is connected with and qualifies, the expression, “shall not be held barred,” &c.; that is, hereafter, when the Statute of Limitations is pleaded to an indictment for forgery it shall not be held barred if itshall have been brought within five years after the commission of the offence. The defendant would have us read the word “ hereafter ” as relating to the time of the commission of the offence, whereas in truth, it relates only to the time when the question is raised, and the court is required to decide it. “ Hereafter it shall not be held,” &c., is the precise connection of the words. This is rendered quite plain by simply transposing the-word to its more appropriate position and reading it thus — that the offence of forgery, whether the same be misdemeanor or felony,, shall not hereafter be held barred by the Statute of Limitations-' lirhen the indictment therefor shall have been brought or exhibited within five years next after the offence has been committed.” It is argued by the learned judge that the act is ex post facto if applied to past offences, and he bases his reasoning upon the very precise and comprehensive definition given by the present chief justice in his valuable edition of Blackstone’s Commentaries, vol. 1, p. 47. That definition is as follows : “ An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Every law that makes an act done before the passing of the law, and which was innocent when done, criminal, or which aggravates a crime and 'makes it greater than it was when it was committed, or which changes the punishment and inflicts a greater punishment than the law annexed to the' crime when committed, or which alters the legal rules of evidence, and makes less or different testimony than the law required at the time of the commission of the offence sufficient in order to convict the offender, falls within this definition.” The learned judge of the court below argues that it would be altering the legal rules of evidence to apply the new bar of five years to a case which was only subject to the bar of two years when the offence was committed. The reasoning is that the Commonwealth in the one case would be required to prove that the offence was oommitted within two years, and in the other within five years, and because five years are more than two, “ the testimony required of the Commonwealth in the former case is less than in the latter.!’ This argument assumes that there is something more to be proved than the commission of the offence. But it will be seen at once that whether the bar be five years or two years, the proof of the Commonwealth is precisely the same in either case. The period of limitation is not a subject of proof at all. The Commonwealth proves that the offence was committed, giving the circumstances in evidence, and necessarily as a part of the factum, the time when it was committed. If then it happens that the law interposes a bar to a conviction if the offence was committed more than two years before the finding of the indictment, and such was the fact in a given case, there can be no conviction. But if the bar were five years, the freedom from conviction would not arise till after five years had elapsed. In each case the actual proof is precisely the same. The Commonwealth proves no more and no less in one case than in the other. Hence, both the quantum of proof and the rules of evidence are the same in both cases, and there is no change in these respects in changing the time of the bar.

At the time the Act of 1877 was passed, the defendant was not free from conviction by force of the two years' limitation of the Act of 1860. He therefore had acquired no right to an acquittal on that ground. Now an act of limitation is an act of grace purely on the part of the legislature. Especially is this the case in the ■matter of criminal prosecutions. The state makes no contract with criminals, at the time of the passage of an act of limitation, that ■they shall have immunity from punishment if nof prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether, as that power may see fit to declare. Such being the character of this kind of legislation, we hold- that in any case -where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws. A law enlarging or repealing a statutory bar against criminal prosecutions may, therefore, apply as well to past as to future eases if its terms include both classes. Such legislation relates to the remedy only and not to any property right or contract right. The Act of 1877 in the present case-was legally operative to enlarge the period of limitation as to the defendant, he having acquired no right of acquittal by virtue of the previous limitation at the time of the passage of the act. It follows from these considerations that the learned judge of the court below was in error in entering judgment in favor of the defendant on the point reserved and in arresting the judgment. That retroactive legislation is -not necessarily unconstitutional, especially where it only affects remedies, has been so many times decided that a mere reference to some of the authorities will be sufficient: Satterlee v. Matthewson, 16 S. & R. 179; Hepburn v. Curts, 7 Watts 300; Kenyon v. Stewart, 8 Wright 191; Schenley v. Commonwealth, 12 Casey 29 ; Waters v. Bates, 8 Wright 473.

Judgment reversed and record remanded with this opinion, setting forth the cause of reversal to the court of Quarter Sessions of Crawford county for further proceedings.